Montana is well-known in the employment world for deviating from the employment at-will doctrine. In Montana, employees are protected under the Wrongful Discharge from Employment Act (WDEA), which provides that an employee’s discharge from employment is wrongful if the discharge is not for good cause.1 One exception to the WDEA is that during an employee’s probationary period of employment, the employee’s employment may be terminated for any reason or no reason.2 While an employer can establish its own specific probationary period, if it does not, there is a six-month probationary period under the WDEA.3
The probationary period exception to the WDEA was at the center of the dispute in Dundas v. Winter Sports, Inc.4 The defendant, Winter Sports, Inc. (WSI), operates a winter ski resort in Montana; most of WSI’s employees are seasonal workers whose length of employment varies with the snowfall each year. The plaintiff, Dundas, was a WSI seasonal employee during each of the winter seasons from 2003 to 2014. While Dundas applied for the positions of Ski Patrol Manager and Assistant Ski Patrol Manager for the 2014-15 winter season, WSI placed him in the new position of Snow Safety Coordinator. Dundas was not pleased with the decision, and expressed his “very low opinion” of the Director of Mountain Operations and WSI’s CEO in an email to the Director.5 Dundas also expressed his anger to fellow employees in a manner WSI management found to be insubordinate. WSI terminated Dundas’ employment due to his inappropriate behavior, approximately three and a half months after his employment began for the season.
Dundas sued WSI under the WDEA. The trial court granted WSI’s summary judgment motion, holding that Dundas did not have a WDEA claim because he was a probationary employee whose employment could be terminated for any reason. On appeal, the Montana Supreme Court agreed with the lower court’s reading of the probationary period exception to the WDEA. The “crucial issue” examined by the court was “whether Dundas was a probationary employee when he was terminated.”6 The court first noted that WSI’s employee handbook explicitly provided as follows:
Seasonal employees are hired to work for a pre-determined period of less than 12 months. At the end of the temporary period, employment is terminated. If a seasonal employee wishes to be considered for employment following termination, they may reapply but, if hired, they are considered a new employee for all purposes.7
The WSI employee handbook also defined the probationary employment period as six months. While Dundas argued that his probationary period expired during his first or second season with WSI, the court held that under WSI’s unambiguous employee handbook provision, Dundas was a new employee each season, including for purposes of the six-month probationary period. Because Dundas worked less than six months during the 2014-2015 season, WSI could terminate his employment for any or no reason.
The WDEA often leads to costly litigation in Montana because of the fact-based issues involved in determining whether a discharge was or was not for good cause. Dundas is a good reminder that employers can try to limit their potential liability by defining the length of the probationary period for employees and clarifying the nature of employment for seasonal and temporary employees in their employee handbooks and policies.