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Difference between revisions of "Employment Law Issues (9:V)"
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The Supreme Court of Canada in ''Dowling v Halifax (City)'', [1998] 1 SCR 22 expressly rejected near cause as grounds for reducing the notice period. This decision has been consistently followed. | The Supreme Court of Canada in ''Dowling v Halifax (City)'', [1998] 1 SCR 22 expressly rejected near cause as grounds for reducing the notice period. This decision has been consistently followed. | ||
=== 10. Constructive Dismissal === | |||
If the employer makes a fundamental, unilateral change in the employment contract, it may amount to constructive dismissal. Changes to a “fundamental term of the contract” includes changes such as: significant reduction in salary, a significant change in benefits, a significant change in job content or status, or a job transfer to a different geographic location if such a transfer is not a normal occurrence or contemplated in the employment contract. Generally, a reduction in pay of more than 10% may result in a constructive dismissal. | |||
The imposition of a temporary layoff, where not provided for in the contract, has also been deemed to constitute constructive dismissal (see [[{{PAGENAME}}#7. Redundancy and Layoff | Section IV.E.7: Redundancy and Layoff]] for details). Suspensions from work may result in a constructive dismissal, particularly if the suspension is without pay. The case of ''Cabiakman v Industrial Alliance Life Insurance Co'', [2004] 3 SCR. 195 reinforced an employer’s right to impose a suspension for administrative reasons, with pay, provided the employer is acting to protect legitimate business interests, the employer is acting in good faith and fairly, and the suspension is for a relatively short period. A constructive dismissal claim is a drastic step for an employee, as it involves the employee leaving work (as though they were fired) and then bringing an action for constructive dismissal. The employee will no longer be receiving compensation from employment, and will instead be seeking to recoup that compensation through a court action. 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 | |||
p9-38 | p9-38 | ||