Did you know that in some circumstances your lawyer's advice
can get you fired? Many lawyers and employees jockey for position
by making extravagant demands in a letter, while still employed.
They do so at their peril. While such a letter is meant to
strengthen an employee's legal position, it could well be cause
That was the case for Sarah Kucera, who answered an online ad
for executive assistant to the president and chief executive of
Quilliq Energy Corp. in Nunavat. During the interview process,
Kucera was told that the crown corporation was undergoing a
restructuring and that her duties could change. Still, she accepted
the job and she and her long-time partner quit their positions in
Toronto and moved to Iqaluit. She took up her position at QEC in
As a result of the restructuring and the change in her
boss's position, Kucera had her position downgraded. The
downgrade did not, however, result in a pay decrease. The company
was happy with her performance and she received a salary increase,
took over the role of corporate secretary and was put on QEC's
labour negotiating committee.
Yet despite those successes, she experienced workplace stress
that took her to the hospital and later a wellness counsellor. The
cause of that stress appears to have been her ongoing poor
relationship with the director of human resources and her inability
to get clear answers on a raise discussed with her boss that was
not followed through on as promised. Eventually, she did receive
the promised amount.
Several months later, in her personnel file she found email
correspondence from the director of HR to the director's direct
reports requesting that the requisite increases be made to
Kucera's salary "or I will face being shot in the face
with 50 of her earrings." These hurtful comments and a
strongly worded letter from her boss laying out her duties within
the company further hurt and disillusioned Kucera.
When the corporate secretary position was finally posted, Kucera
was on vacation and asked for an extension to the deadline so she
could apply. However, she eventually decided not to as she was
reconsidering her future with QEC.
Conversations with her wellness counsellor show she was
considering negotiating a package and had hired a lawyer. While on
sick leave in August 2010, she had a lawyer send QEC a letter,
alleging she had been constructively dismissed and advising she
would remain in her position while negotiations for a severance
package were underway. The letter was addressed to the CEO and
copied to the board and the provincial minister responsible for the
QEC immediately fired her for cause, claiming the letter was
insubordinate and that the relationship of trust had been
Kucera's claims of constructive dismissal were based on two
things: A change to her duties and a hostile work
environment. The court found that her duties were dependent on
those of the CEO so that, to the extent his duties changed, so
would hers. It said, "employers must be allowed some
flexibility to restructure as circumstances demand without risking
a claim of constructive dismissal." As well, the fact she was
provided additional duties, indicated her overall status was not
reduced and the organization had confidence in her.
As for her conflict with the director of HR making for a hostile
environment, that claim was also dismissed. The court found,
"a hostile working environment can form the basis of a
constructive dismissal claim but to do so, it must go well beyond
interpersonal conflict, workplace disagreements or criticism. Where
unfriendliness, confrontations between co-workers or some hostility
and conflict occurs, it will not be a constructive
The loss of her constructive dismissal claim was compounded by
the court's reaction to her lawyer's letter. The court
agreed with the employer that a lawsuit commencing this way is
cause for discharge because it is incompatible with the
continuation of the trust required in an employment
While Kucera did not sue QEC but merely threatened to, the court
found that her discontent was well known and the letter was not a
legitimate attempt to resolve differences and did not provide the
option for her to continue working.
Kucera made it clear she wished to leave and politicized her
dispute by copying numerous people to exert pressure on her
employer to pay her severance. Given her sensitive position working
for the president and CEO with access to confidential information,
there was an expectation for a high level of trust and confidence
which the letter rendered impractical.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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