McAulay v. Fauquier and District Golf Club Date:, 2013 BCPC 304

Citation: McAulay v. Fauquier and District Golf Club Date: 20131105 2013 BCPC 0304 File No: 1180 Registry: Nakusp IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DEBORAH McAULAY CLAIMANT AND: FAUQUIER & DISTRICT GOLF CLUB DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L MROZINSKI Appearing for the Claimant: D. McAulay Appearing for the Defendant: B. Hilton

Place of Hearing: Nakusp , B.C. Date of Hearing: September 26, 2013 Date of Judgment: November 5, 2013 Introduction [ 1 ] Deborah McAulay was employed by defendant, Fauquier & District Golf Club (the “Golf Club”) as a Club House attendant. For five seasons, Ms. McAulay worked at the Golf Club performing various tasks both indoors and outdoors. On June 8, 2012, only three weeks into her sixth season, the Golf Club dismissed Ms. McAulay for what it submits was cause. [ 2 ] Ms. McAulay submits that the Golf Club did not have cause to fire her and she brings this claim for damages for wrongful dismissal.

In her claim, Ms. McAulay also sought vacation pay pursuant to the Employment Standards Act [R.S.B.C. 1996] c. 113 (the “ Act ”), but withdrew that claim at the end of trial. She did however maintain her claim to the value of a 2012 golf membership - which she submits was part of her contract of employment, and a penalty in the amount of 5% of her damages for abuse of authority and bullying in the workplace. [ 3 ] The Golf Club denies owing Ms. McAulay any compensation at all and certainly no more than the value of the severance package given to her upon her dismissal.

It denies any allegations of abuse of authority or bullying. [ 4 ] The question in this case is whether the Golf Club had cause to dismiss Ms. McAulay. That question in turn requires a determination of the scope of Ms. McAulay’s contract of employment and the reasons for her dismissal. If Ms. McAulay was wrongfully dismissed, as she claims, this court has to assess the appropriate notice period. In this case, Ms. McAulay submits that period is defined in what she maintains is her written contract of employment with the Golf Club. The nature and scope of Ms. McAulay’s contract of employment [ 5 ] Ms.

McAulay, age 54, and an accounting clerk by trade, was hired by the Golf Club in May, 2012 to work as a Club House attendant. The 2012 season would have been Ms. McAulay’s sixth season as an employee of the Golf Club in that capacity. [ 6 ] Though I will address the duties of a Club House attendant in more detail below, particularly in relation to Ms.

McAulay in the 2012 season, in general an attendant’s duties would involve opening and/or closing the Club House, ringing up attendance and other fees such as rental fees, keeping track of rental items such as clubs and pull carts, restocking shelves, and keeping the washrooms clean and stocked. I find also that in general an attendant would work out of doors from time to time doing sundry chores such as weeding, or attending to the ball washing machines and so forth. [ 7 ] Some of the Golf Club’s seasonal employees, including Ms. McAulay, worked under what is known as an “averaging agreement”.

An averaging agreement is a form of contract authorized pursuant to s. 37 of the Act . In general, an average work day is 8 hours and an average work week forty hours, after which overtime pay is typically required.

Section 37 of the Act allows employers and employees to opt out of this arrangement under an averaging agreement. Averaging agreements can authorize employees to work up to 12 hours in a day averaging 40 hours per week without being paid overtime. The rules for such agreements require that they be in writing, that they specify the number of weeks over four that the hours will be averaged, the work

schedule for each day, and the start date and end date of the averaging agreement. [ 8 ] I find that averaging agreements are simply agreements by which employees agree to work longer days for a specified period of time provided they do not exceed 40 hours per week. It is a form of contracting out of daily and weekly work hours mandated by ss. 35 , 36 and 40 of the Act . [ 9 ] In this case, Ms. McAulay and the Golf Club signed an averaging agreement which met the criteria required by the Act . The agreement was entered as Exhibit 1 in this trial.

It provides for ten hour shifts with a shift average between two employees of 35 hours per week averaged over a two week period. The start date of the agreement was May 18, 2012 and the end date, September 3, 2012. [ 10 ] Ms. McAulay maintains that the agreement entered as Exhibit 1 is not just an averaging agreement but in fact a written contract for a term of employment. She submitted that page two of Exhibit 1 constituted the list of the duties she had contracted to perform over the term of the contract. [ 11 ] Page 2 of Exhibit 1 is an agenda of a staff meeting that took place between the Golf Club, Ms.

McAulay and another employee on May 14, 2012. Ms. McAulay maintains that items listed under the word “Agenda” are in fact a list of her employment duties. [ 12 ] There are clearly some duties listed in page 2 of Exhibit 1 that were associated with Ms. McAulay’s job as a Club House attendant. However, a number of the items referenced in page 2 of this document have nothing to do with her terms of employment. [ 13 ] I find that there was some discussion of some of the tasks Ms.

McAulay would be asked to perform at this meeting but this is not a contract of employment and it is certainly not an exhaustive list of Ms. McAulay’s terms of employment or her duties as an employee. I find also, as I will discuss below, that even after this staff meeting on May 8, 2012, Ms. McAulay wanted clarification of her duties particularly in regard to outdoor work. The question of the scope of her employment duties was by no means resolved at the staff meeting in early May. [ 14 ] I find in addition that the first page of Exhibit 1, the averaging agreement, is not a contract for a term of employment.

Rather, it

is an agreement that from May 18 up to and including September 3, 2012, Ms. McAulay would work extended hours and would not be paid overtime. It is not a promise on the part of the Golf Club to employ Ms. McAulay for that time; it is an agreement on her part regarding her pay for hours worked over and above a standard 8 hour work day. [ 15 ] It follows and I find that there was in this case no written contract of employment defining Ms. McAulay’s duties or her term of employment. The next question is whether Ms. McAulay breached her employment contract such that her dismissal was justified.

The 2012 Season [ 16 ] Ms. McAulay testified that in 2012, she understood her job at the Golf Club was to do in-house chores. She acknowledged that in previous years she had done outdoor work and bemoaned the fact that in May, 2012, those duties were taken away because the Golf Course had hired a student. [ 17 ] Despite her assertion that her job duties were committed to writing in the document attached as page 2 to Exhibit 1, both parties agreed that after the May 8 staff meeting, Ms. McAulay wanted some clarification of her duties.

Also, by June, 2012, various members of the Golf Club had expressed concern that Ms. McAulay was underutilized. The weather had been such that few persons were using the course. Members saw Ms. McAulay inside the clubhouse with little to do. [ 18 ] Mr. Hilton testified that as a consequence of the rainy weather, and the concerns expressed by Club House members that Ms. McAulay seemed to have no work, he and Ms. McAulay spoke by phone on June 6, wherein he asked her to be prepared to work outside. He testified he did this “because there were zero customers” in the Club House. Mr. Hilton testified that Ms.

McAulay refused to work outside and she left the premises. At that point, he decided to create the list of duties that would be expected to be performed by Club House attendants. [ 19 ] The list, entitled the “Club House Attendant Standards of Performance” was entered in this trial and marked as Exhibit 2. [ 20 ] Among other things, it stated that the persons employed in the Club House attendant position would be required to sweep or vacuum various floors, clean washrooms, fill fridges, restock shelves, clean windows and so forth.

It also required attendants to work as a team with course maintenance staff to wash and clean outhouses, empty garbage cans, and service ball washers, wipe down outdoor benches, and do other work on the golf course as needed. Attendants were told that the work could vary from one hour to a full shift on rainy days depending on how busy the course was and the team leader’s availability. [ 21 ] Mr. Hilton asked Ms. McAulay to sign the list at a meeting at the Golf Club on June 8, 2012. She refused and Mr. Hilton accepted her refusal to sign the document as a refusal to work outside as she was asked.

It was that refusal, coupled with her refusal on June 6 to work outside that led Ms. McAulay’s dismissal. Did the Golf Club have cause to dismiss Ms. McAulay [ 22 ] Ms. McAulay agrees that she refused to sign the work list. She testified that when she and Mr. Hilton discussed what sort of work she would be doing outside, she was told that she would be expected to do some pruning, painting and holding the ladder.

She testified her reply was that as she already had a contract and there was no benefit to her in the new list of duties, that she would not sign the document. [ 23 ] While I do not find page 2 of Exhibit 1 to be a contract outlining Ms. McAulay’s job duties exhaustively, it is notable that in that meeting, Ms. McAulay was advised that the attendants would not be cleaning washrooms on the course, or picking up garbage or filling the ball washers generally. However, the document also indicates Ms. McAulay was advised that she might be asked to do such tasks from time to time. As Ms.

McAulay testified, she had performed such tasks in previous years willingly. [ 24 ] I find that a person employed as a Club House attendant at the Golf Club could expect to be asked to work outside the Club House from time to time. As Ms. McAulay testified, outdoor work had been part of the job in previous years and there is nothing on the evidence to support her submission that her employment contract of 2012 precluded her employer from asking her to do some outdoor work. In this case, I am satisfied that because of the rainy weather, Ms.

McAulay was underutilized in the Club House from May to June, 2012, and it was not an unreasonable request on the part of her employer to ask her to undertake some outdoor work. [ 25 ] Ms. McAulay expressed a concern that Mr. Hilton did not respond to her when she asked if she would be expected to work outside in a lightening storm. I am asked to infer from this that the employer’s request that she work out of doors was unreasonable. There is no basis in the evidence for this finding. I accept Mr. Hilton’s evidence that he did not respond to Ms. McAulay’s question because it struck him as fanciful.

I accept that Mr. Hilton would never have asked Ms. McAulay to work outside in lightening and such a request was not made in this case. [ 26 ] I find firstly that Ms. McAulay did refuse to work outside as requested by her employer. I find that request to have been reasonable and within the scope of her employment duties.

However, the question is whether her initial refusal to work outside pending a clarification of her job duties and her second refusal to sign the list of job duties proffered to her at the June 8 meeting, constitutes a breach of her employment contract such that her employer was justified in dismissing her without the so-called cushion of a notice period. [ 27 ] There is ample law regarding dismissal for cause.

Among the many cases, I have set out comments from a few to enable the parties to better understand their respective obligations both as employers and employees and as persons litigating employment law matters. [28] A good general statement of the law in this area is found in the reasons of Metzger J. noted in Kirby v. Amalgamated Income Limited Partnership , 2009 BCSC 1044 who noted at paras. 151-152, 75 C.C.E.L. (3d) 186 that: [151] At common law, an employer has the right to summarily dismiss an employee for just cause. Just cause constitutes conduct that is

incompatible with those duties that go to the "root" of the employment contract, and consequently fractures the employment relationshipin such a way that the employer cannot be expected to provide the employee with a second chance: Leung v. Doppler Industries Inc.,(BC SC), [1995] B.C.J. No. 690, 10 C.C.E.L. (2d) 147, at para. 26 (S.C.), aff'd (1997), (BC CA),27 C.C.E.L. (2d) 285, 86 B.C.A.C. 137. v. Jamieson (c.o.b. Advertising in Print), 2004 BCSC 1540, 37 C.C.E.L. (3d) 120, at para. 16 [Baumgartner].

The conduct at issue mustbe "real incompetence or misconduct," not "simple dissatisfaction with performance" or concerns about future conduct: Geluch, cited inBaumgartner, at para. 16. [29] In McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161; rev'g 1999 BCCA 308, 67 B.C.L.R. (3d) 337, the Supreme Court ofCanada set out the approach courts must take in assessing whether an employee’s conduct can justify a dismissal.

In McKinley, the courtset out a two part test requiring the employer to first show that the conduct complained of occurred and secondly that it was of asufficiently serious nature and degree to warrant dismissal: At para 53, the court added as follows: [53] Underlying the approach I propose is the principle of proportionality. An effective balance must be struck between the severity ofan employee's misconduct and the sanction imposed.

The importance of this balance is better understood by considering the sense ofidentity and self-worth individuals frequently derive from their employment, a concept that was explored in Reference Re Public ServiceEmployee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, where Dickson C.J. (writing in dissent) stated at p. 368: Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, asimportantly, a contributory role in society.

A person's employment is an essential component of his or her sense of identity, self-worthand emotional well-being. [30] In Panton v. Everyone Woman's Health Centre Society, 2000 BCCA 621, at paragraph 24 the Court stated that the question waswhether the employee's conduct "... was so egregious in the circumstances as to permit her employer to terminate the employment relationship without providing thecushion of reasonable notice ..." [31] At paragraph 26 in Panton, the Court cites a passage from R. v.

Arthurs (ON CA), [1967] 2 O.R. 49, 62 D.L.R.(2d) 342 (C.A.) as follows: "If an employee has been guilty of serious misconduct, habitual neglected duty, incompetence, or conduct incompatible with his duties orprejudicial to the employer's business, or is he is been guilty of wilful disobedience to the employer's order in a matter of substance, thelaw recognizes the employer's right summarily to dismiss the delinquent employee". [32] From these cases it can be seen that an employee’s conduct must seriously and significantly undermine the entire employmentrelationship before that relationship, so central to the employee, can be severed without adequate notice. [33] In this case, I have found that Ms.

McAulay did refuse to work outside on June 6, 2013. However, both parties agree that priorto their final meeting on June 8, the scope of Ms. McAulay’s duties as a Club House attendant required clarification. As such, it cannotbe said her job duties were so clear that a refusal to work outside prior to the June 8 meeting would have justified her dismissal. She wasjustified in my view in seeking that clarification given that both parties seemed confused as to the legal effect of the discussion that tookplace in May, some of which was noted on page 2 of Exhibit 1. [34] Mr.

Hilton testified that in order to clear the air, he drafted a lengthy list of duties the Golf Club expected Ms. McAulay andother employees to perform. He testified that only Ms. McAulay was asked to sign the list because the other two employees had agreedto perform the tasks set out. I accept that Ms. McAulay refused to sign this list. However, the Golf Club was in no way justified indismissing Ms. McAulay simply because she refused to sign the list. It was clearly not an aspect of her employment contract. [35] Ms.

McAulay may have been a difficult employee but in my view her actions are not so egregious as to justify her dismissalwithout cause or proper notice. I do not see how in the circumstances of this case, given the uncertainty around her job duties and whilein the midst of a clarification process, the Golf Club had just cause to dismiss Ms. McAulay. [36] Since I have found that Ms. McAulay was wrongfully dismissed from her employment by the Golf Course, it follows that I mustassess the applicable notice period. The Notice Period [37] Ms.

McAulay submits that she is entitled to damages in the amount of what she believes to have been the term of heremployment contract with the Golf Club as set out in the averaging agreement. I have already found that the averaging agreement is nota contract of employment. It is an agreement on the part of Ms. McAulay to work more than 8 hours per day but not more than 40 hoursper week without accruing overtime. As such, it follows that Ms. McAulay is not entitled to damages based on the time remaining in theaveraging agreement. Ms.

McAulay’s damages, based on the appropriate notice period, must therefore be determined under the commonlaw. [38] Under the common law, an employer may dismiss an employee without cause, but in so doing the employer takes on aconcomitant obligation to provide the employee with reasonable notice, or pay in lieu thereof. As many of the cases discuss, the purposeof the notice period is to enable the employee to find other work. In this way, the notice period acts, as the court in Panton noted, like acushion for the employee. [39] The leading case in Canadian law on notice periods for wrongful dismissal is Bardal v.

Globe and Mail, (1960) 1960

294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.). Bardal holds that in determining the appropriate notice period, several factors must beconsidered. Those include the character and length of the employment; the age of the employee, his or her training and experience, andthe ease or difficulty with which the employee will find comparable, alternative employment. Character of Employment [40] I have already alluded to the character of Ms. McAulay’s employment. It is seasonal work at a golf club. The job requires littlein the way of technical skill or education.

Rather, it would seem to require some interpersonal skills, some ability to do simplemathematics, and some physical aptitude for indoor and outdoor labour. Length of Employment [41] The length of employment in this case is slightly complicated by the fact that Ms. McAulay was hired as a seasonal worker. Onthe one hand, when she was dismissed, Ms. McAulay was at the beginning of her sixth season at the Golf Club. On the other hand, inthat season Ms. McAulay had worked only three weeks. [42] In order to assess length of employment in this case it is necessary therefore to determine whether Ms.

McAulay wasindefinitely employed for work of a seasonal nature, or whether she was employed for successive term contracts that were co-extensivewith the seasons. [43] A useful discussion of this issue is found in the reasons of Lowry J., as he then was, in Van Tent v. Cloverdale Raceway Ltd. etal, [1997] B.C.J. No. 2549. The question in Van Tent was whether the plaintiff, who had worked seasonally at the race track for fiveyears, was a purely seasonal employee or whether she was actually permanently employed indefinitely for full-time seasonal work.

Atparas. 4 and 5 of the reasons, Lowry J. held as follows: 4 Whether Ms. Van Tent was entitled to any notice would appear to turn on whether her employment between 1991 and 1996 (fiveracing seasons) ended each season such that she was effectively rehired for the next or whether she was actually permanently employedindefinitely for full-time seasonal work. The two kinds of employment contracts are contrasted respectively in Browne v.

CrabbeMountain Winter Park Ltd. (1991), (NB KB), 113 N.B.R. (2d) 436 (Q.B.) on the one hand and Saunders v.Fredericton Golf & Curling Club Inc. (1994), (NB CA), 151 N.B.R. (2d) 184 (C.A.) and Gray v. Corporation of theTownship of Manvers (1992), 93 C.L.L.C. 14,023 (Ont. Ct. (Gen. Div.)) on the other. 5 In my view, at least after five seasons, both Ms. Van Tent and her employer considered her to be permanently employed for seasonalwork. I say that because, unlike the other employees who were seasonally employed at the track, Ms. Van Tent was not required to enterinto a formal contract for each season.

She continued to receive employee benefits such as pension contributions and bonuses that werenot given to the regular seasonal employees. She was permitted to keep her keys to the premises during the off-season. And when shewas told she would not be employed for the 1996-97 season, her employer gave her a lump sum payment representing eight weeks wages(the maximum payable under the Employment Standards Act, R.S.B.C. 1996, c. 113, s. 63) thereby appearing to acknowledge that heremployment was indefinite and required that she be given reasonable notice or pay in lieu thereof. [44] Other cases, such as Jordison v.

Caledonian Curling Co-operative Limited, 2000 SKQB 55 [2000] S.J. No. 75, havefound similar seasonal work to be in the nature of permanent employment. Mr. Jordison, for example, had worked as an ice-maker on aseasonal basis from September until mid-April from 1980 to 1995, though at the end of each season his record of employment indicatedthat his recall date was unknown. [45] When Mr. Jordison was asked to compete for his job in 1995 and lost the competition he brought an action for wrongfuldismissal. In upholding his claim, the court found that Mr. Jordison was a permanent employee.

That finding was supported by thesheer length of his service. [46] In this case, Ms. McAulay does not have a lengthy or even a continuing record of service. Ms. McAulay testified that sheworked at the Golf Club in 2006 and then from 2008 to the time of her dismissal in 2012. Unlike Van Tent, there is no evidence in thiscase that Ms. McAulay received benefits from the Golf Club after the season. She was required to enter into an averaging agreementeach year, and on her own evidence, had discussions concerning what her job duties might be.

Those varied from year to year dependingon the needs of the Golf Club and its other employees. [47] However, Ms. McAulay testified that in 2010 she had to “fight” for her job. By that, Ms. McAulay was referring to aconversation with the Treasurer of the Golf Club who had indicated she would not be re-hired. Ms. McAulay testified that she had beenup to that time working at the Club under a targeted wage subsidy. The Treasurer had allegedly advised her that the Golf Club intendedto hire other persons that season. Ms.

McAulay testified she told the Treasurer the Golf Club could not hire anyone else under thetargeted wage subsidy without first giving her an opportunity to accept or refuse employment. It appears that for that reason, Ms.McAulay was hired in the 2010 season. As I will discuss below, Ms. McAulay maintained that her employment relationship at the GolfClub soured in 2010 because of this incident and she then became the subject of workplace bullying. [48] Though arguably the Golf Club did not have to hire Ms.

McAulay if it chose to forgo the wage subsidy, it obviously decided totake advantage of the wage subsidy and, in so doing, re-hired Ms. McAulay who then continued to make herself available foremployment for several more seasons. [49] Ms. McAulay put into evidence an “Employer Wage Subsidy Form” which the Treasurer of the Golf Club filled out in regard toher employment in May, 2009. The Golf Club sought a 50% subsidy for Ms. McAulay’s wages for that season. At the bottom of theform, the writer checked the “no” box in answer to the question whether Ms. McAulay’s employment would continue after contractcompletion.

However, the writer then noted in a separate space that the Golf Club hoped to able to offer Ms. McAulay yearlyemployment if she was available. [50] Ms. McAulay did make herself available for work up to the 2012 season when she was dismissed.

[51] Ms. McAulay also testified that her record of employment indicated she was returning to work although the return date was unknown. While no such record was put into evidence, this testimony was neither disputed nor challenged by Mr. Hilton on behalf of the Golf Club. [52] In addition, Mr. Hilton testified that the severance package the Golf Club paid Ms. McAulay was based on one week’s severance per year worked, for four years in total. In other words, the Golf Club viewed Ms.

McAulay as a sort of permanent seasonal employee who would return year after year to work the season. [53] On the face of it, the Golf Club’s severance package for four years work seems inconsistent with Ms. McAulay’s evidence that she worked six seasons. However, in 2012 Ms. McAulay was just starting her sixth season. Moreover, there was a break between her service in 2006 and 2008. After the 2008 season, Ms. McAulay seems to have worked at the Golf Club on a yearly basis.

I accept that the Golf Club did not count her work in 2006 as part of her severance package since it was not contiguous with her seasonal employment from 2008 to the 2012 season. I accept also that the Golf Club did not factor in the 2012 season in assessing its notice requirements. [54] I find that the length of Ms. McAulay’s service for the purpose of assessing the notice period is five years, all of which are as a seasonal employee. Age [55] Ms. McAulay is 54 years of age. Training or Skills [56] I have no evidence that Ms.

McAulay received or had any special training for the position of Club House attendant though some familiarity with cash registers and golf courses generally would obviously have been a job requirement. Other Employment [57] In terms of her difficulty finding comparable employment, Ms. McAulay testified that she did not look for any work after being dismissed because the Golf Club was the only business in Fauquier. Mitigation of damages [58] While an employee has a duty to mitigate damages by pursuing alternative employment, the onus is on the employer to prove a failure to mitigate: see Howard A.

Levitt, The Law of Dismissal in Canada , 3rd ed., loose-leaf (Aurora: Canada Law Book, 2003) at 10- 3; England, Wood, Christie, Employment Law in Canada , 4th ed., loose-leaf, (Markham: LexisNexis Canada Inc., 2005) at 16-89, and Birch v. London Drugs Ltd . 2003 BCSC 1253 at para 25 . [59] In this case, neither party addressed the issue of mitigation. Though there might have been similar employment available in neighbouring communities such as Nakusp, I have no evidence on which I could conclude that there was or that it would have been available to Ms.

McAulay had she pursued any such opportunity. [60] I find that Ms. McAulay, a 54 year old accounting clerk by trade, was employed by the Golf Club in a relatively unskilled position for four full seasons, and three weeks of the 2012 golf season, before she was wrongfully dismissed. Essentially, Ms. McAulay made herself available for work at the Golf Club for five seasons. In this case, though it thought it had cause for dismissal, the Golf Club paid Ms. McAulay four weeks severance pay. In my view, this was not an adequate notice period given Ms.

McAulay’s length of employment, her age and the difficulty of finding other similar employment. I find that Ms. McAulay is entitled to ten weeks’ notice. The Golf Club membership [61] Ms. McAulay testified that in addition to her severance pay, she was owed the value of a 2012 Golf Club membership. There was no evidence as to what a 2012 membership at the Fauquier Golf Club would amount to but in any event I am satisfied on the evidence that a membership was not part of Ms. McAulay’s employment package. [62] Ms. McAulay’s evidence was that she understood she had a free golf club membership for the whole season.

She recalled such a perk being discussed at a meeting in May, 2012, but acknowledges that this offer was not committed to writing. Rather, Ms. McAulay testified that at the meeting she was left with the impression that she had been granted a free membership. [63] She subsequently added her name to the membership list and felt some comfort in the fact that no one commented about that action one way or the other. When Ms. McAulay left the Golf Club on June 6, she said she came back after lunch and took in a round of golf. She testified that Mr. Hilton saw her there and, in her words, “didn’t stop me.” [64] Ms.

McAulay’s evidence suggests that she was not sure she had a golf club membership and so tested her theory from time to time. When her actions were not the subject of any comment, it cemented in her mind her impression that she had been granted the membership. [65] After her dismissal, when she again golfed at the Club without paying, Ms. McAulay received a letter from the Golf Club indicating that she did not have a membership but had, while she was an employee, membership privileges. [66] Whatever may have been Ms. McAulay’s impression, there was no clear offer of a golf club membership.

On balance, I do not accept that Ms. McAulay had anything more than a hope that this was either a part of her employment package or that in any event no one would object to her golfing for free. As I do not find that such a membership was part of Ms. McAulay’s employment package I make no order of compensation in that regard. Workplace Discrimination

[67] Finally, I will address Ms. McAulay’s claim for damages for workplace bullying. This is a claim essentially for damages arising out of alleged discriminatory practices, if I can put it that way, at the Golf Club wherein Ms. McAulay submits she was singled out and therefore bullied and harassed in the work place. [68] The nub of Ms. McAulay’s claim in this regard is that as a consequence of a disagreement she had had with the Treasurer of the Golf Club in 2010, she was targeted for special attention. As an example, Ms.

McAulay submitted that she was the only one requested to sign the list of duties in June, 2012. Mr. Hilton testified that other Golf Club employees had been asked to review the same list of duties that Ms. McAulay had been asked to sign but neither had been asked to sign the document as both agreed to perform the duties set out. In the result, Ms. McAulay was treated somewhat differently but it was because Ms. McAulay had already indicated to Mr. Hilton that she would not work out of doors. The evidence in this case bears that out. [69] On balance, I find no link between Ms.

McAulay’s dispute with the Treasurer of the Golf Club in 2010 and the conditions which caused her employer to ask her to work outside in 2012 or to sign the list of job duties. There is, therefore, no basis for an order compensating Ms. McAulay for damages arising out of her alleged workplace discrimination or bullying.

Summary [70] I find that Ms. McAulay was wrongfully dismissed from her job as a Club House attendant by the Golf Club. I find she is entitled to a ten week notice period from which must be deducted the four week’s pay in lieu of notice she has already received. Ms. McAulay’s claim for compensation for a golf club membership and damages for workplace bullying are dismissed. ____________________ L.J. Mrozinski