Difference between revisions of "Employment Law Issues (9:V)"

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An employee bringing a claim for constructive dismissal is making a claim for the severance they would have received had they been dismissed without cause.

a)Mitigation Required An employee is still required to mitigate his damages if he is constructively dismissed. Sometimes, the employee will be required to mitigate by continuing to work for his current employer. See Evans v Teamsters Local Union No. 31 (2008 SCC 20) for a discussion of the relationship between constructive dismissal and the employee`s duty to mitigate. b)Condonation If an employee accepts the imposed changes without complaint, he or she is considered to have accepted the change, and will therefore be barred from action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes. c)Repudiation Employees alleging constructive dismissal bear the risk that the court finds they have repudiated their contract of employment by either leaving the workforce or commencing legal proceedings against their employer (or both). 11.Resignation v. Dismissal Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the relevant statements

==== a) Mitigation Required ====

An employee is still required to mitigate his damages if he is constructively dismissed. Sometimes, the employee will be required to mitigate by continuing to work for his current employer. See ''Evans v Teamsters Local Union No. 31'' (2008 SCC 20) for a discussion of the relationship between constructive dismissal and the employee`s duty to mitigate.

==== b) Condonation ====

If an employee accepts the imposed changes without complaint, he or she is considered to have accepted the change, and will therefore be barred from action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes.

==== c) Repudiation ====

Employees alleging constructive dismissal bear the risk that the court finds they have repudiated their contract of employment by either leaving the workforce or commencing legal proceedings against their employer (or both).

=== 11. Resignation v. Dismissal ===

Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the relevant statements and actions, taking into consideration the context of the particular industry, and all surrounding circumstances. For example, harassment at work could cause the employee to be unable to continue working and this might cause them to resign; in cases such as these, additional research should be done to determine whether the situation should be considered a resignation or a dismissal.

To be effective, resignation must be clear and unequivocal. There must be a clear statement of an intention to resign, or conduct from which that intention would clearly appear. See ''Koos v A & A Customs Brokers Ltd.'' (2009 BCSC 563).

=== 12. Sale of a Business ===

If a business is sold, unless the seller specifically dismisses the employees there may be an implied assignment to the new owner if the employee continues to provide services as before and the new owners accept those services (''ESA'', s 97). See also ''Helping Hands Agency Ltd v British Columbia (Director of Employment Standards)'', [1995] BCJ No 2524.

=== 13. Aggravated and Punitive Damages ===

==== a) Aggravated Damages ====

Courts can award aggravated damages if the employer acted unfairly or in bad faith when dismissing the employee, and the employee can prove that they suffered harm as a result of the manner of dismissal.

The loss must arise as a result of the manner of dismissal, and not due to the dismissal itself. If the employee wishes to obtain aggravated damages because they suffered mental harm, they must obtain medical evidence such as a doctor’s report (for example, the doctor’s report might document the employee’s depression, anxiety, or other mental harm). It may be necessary to have a doctor testify in court in order to present a solid case for aggravated damages. If the employee did not suffer documented harm, see [[{{PAGENAME}}#b) Punitive Damages | Punitive Damages]] below.

The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal. In ''Honda Canada Inc v Keays'', 2008 SCC 39, the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include mental distress stemming from the manner of dismissal. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.

Prior to the ''Honda v Keays'' decision, damages awarded where the employer had acted in bad faith were assessed by simply extending the notice period to which the employee would otherwise be entitled. This practice was based on the Supreme Court of Canada’s decision in ''Wallace v United Grain Growers Ltd'', [1997] 3 SCR 701, and the awards were informally known as “Wallace Damages”. Following the ''Honda v Keays'' decision, the practice of assessing damages by extending the notice period is no longer to be used. Now, one must prove what actual losses or mental harm the employee incurred, and the employee is then compensated for those actual losses or mental distress.

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@@ Line 712: / Line 712: @@
 An employee bringing a claim for constructive dismissal is making a claim for the severance they would have received had they been dismissed without cause.
-a)Mitigation Required An employee is still required to mitigate his damages if he is constructively dismissed.  Sometimes, the employee will be required to mitigate by continuing to work for his current  employer.    See Evans  v  Teamsters  Local  Union  No.  31  (2008  SCC  20)  for  a discussion  of  the  relationship  between  constructive  dismissal  and  the  employee`s duty to mitigate. b)Condonation If  an  employee  accepts  the  imposed  changes  without  complaint,  he  or  she  is considered  to  have  accepted  the change,  and  will  therefore  be  barred from  action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes.  c)Repudiation Employees alleging constructive dismissal bear the risk that the court finds they have repudiated  their  contract  of  employment  by  either  leaving  the  workforce  or commencing legal proceedings against their employer (or both). 11.Resignation v. Dismissal Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the  relevant statements
+==== a) Mitigation Required ====
+An employee is still required to mitigate his damages if he is constructively dismissed. Sometimes, the employee will be required to mitigate by continuing to work for his current employer. See ''Evans v Teamsters Local Union No. 31'' (2008 SCC 20) for a discussion of the relationship between constructive dismissal and  the employee`s duty to mitigate.
+==== b) Condonation ====
+If an employee accepts the imposed changes without complaint, he or she is considered to have accepted the change, and will therefore be barred from action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes.
+==== c) Repudiation ====
+Employees alleging constructive dismissal bear the risk that the court finds they have repudiated their contract of employment by either leaving the workforce  or commencing legal proceedings against their employer (or both).
+=== 11. Resignation v. Dismissal ===
+Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the relevant statements and actions, taking into consideration the context of the particular industry, and all surrounding circumstances. For example, harassment at work  could cause the employee to be unable to continue working and this might cause them to resign; in cases such as these, additional research should be done to determine whether the situation should be considered a resignation or a dismissal.
+To be effective, resignation must be clear and unequivocal. There must be a clear statement of an intention to resign, or conduct from which that intention  would clearly appear. See ''Koos v A & A Customs Brokers Ltd.'' (2009 BCSC 563).
+=== 12. Sale of a Business ===
+If a business is sold, unless the seller specifically dismisses the employees there may be an implied assignment to the new owner if the employee continues to  provide services as before and the new owners accept those services (''ESA'', s 97). See also ''Helping Hands Agency Ltd v British Columbia (Director of Employment Standards)'', [1995] BCJ No 2524.
+=== 13. Aggravated and Punitive Damages ===
+==== a) Aggravated Damages ====
+Courts can award aggravated damages if the employer acted unfairly or in bad faith when dismissing the employee, and the employee can prove that they suffered harm as a result of the manner of dismissal.
+The loss must arise as a result of the manner of dismissal, and not due to the dismissal itself. If the employee wishes to obtain aggravated damages because they suffered mental harm, they must obtain medical evidence such as a doctor’s report (for example, the doctor’s report might document the employee’s depression, anxiety, or other mental harm). It may be necessary to have a doctor testify in court in order to present a solid case for aggravated damages. If the employee did not suffer documented harm, see [[{{PAGENAME}}#b) Punitive Damages | Punitive Damages]] below.
+The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal. In ''Honda Canada Inc v Keays'', 2008 SCC 39, the Supreme Court of Canada held that any such additional award must be compensatory and must be  based on the actual loss or damage suffered by the employee, which can include mental distress stemming from the manner of dismissal. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.
+Prior to the ''Honda v Keays'' decision, damages awarded where the employer had acted in bad faith were assessed by simply extending the notice period to  which the employee would otherwise be entitled. This practice was based on the Supreme Court of Canada’s decision in ''Wallace v United Grain Growers Ltd'', [1997] 3 SCR 701, and the awards were informally known as “Wallace Damages”. Following the ''Honda v Keays'' decision, the practice of assessing damages by extending the notice period is no longer to be used. Now, one must prove what actual losses or mental harm the employee incurred, and the employee is then compensated for those actual losses or mental distress.
 p9-38

Difference between revisions of "Employment Law Issues (9:V)"

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