In the recent case of Penteliuk v CIBC World Markets Inc,
the Ontario Superior Court held that an employee whose promised
promotion was taking longer than expected was not constructively
The Plaintiff was employed as a Managing Director at a large
financial institution. In February of 2004, the Plaintiff turned
down a lucrative employment offer from a competing employer on the
basis that he would be promoted. In December of 2004, the Plaintiff
left his position with the Defendant and accepted a position with a
competing employer. The Plaintiff alleged that the Defendant
unreasonably delayed in promoting him and that the compensation
paid to him was less than the agreed upon compensation. The
Defendant did not dispute that it agreed to promote the Plaintiff.
Instead, the Defendant disputed that it had agreed upon a fixed
date for the Plaintiff's promotion.
According to the Court, it is possible for an employee to be
constructively dismissed when a promised promotion or rise in
compensation does not occur within a reasonable time frame. In
order to determine whether an employee was constructively dismissed
on these grounds, the Court looked at the nature of the
relationship and communications between the parties in some
Upon reviewing the evidence, the Court held that the Defendant did
not agree to a fixed date for the promotion.
The Court found that the negotiations between the Plaintiff
and the Defendant did establish that the Plaintiff was entitled to
an expectation that he would be promoted within a reasonable period
of time. However, at all times the Defendant urged the Plaintiff to
have patience and took significant steps to implement his
promotion, including giving him the promised significant increase
in his compensation, and effectively announcing his promotion to
the most senior levels of management, Human Resources, and the
The Court found that the Plaintiff had not raised an objection
about the timing of the promotion until December of 2004, at the
same time he tendered his letter of resignation. The general
practice of the Defendant was to promote employees at the end of
the calendar year or start of the next calendar year. The court
held that it was not prejudicial for the Plaintiff to wait until
that period before receiving his promotion.
In the end, the court held that the Plaintiff was determined to
leave and take up a unique opportunity with another employer which
he was entitled to do. In other words, the true intention of the
Plaintiff was to resign for another opportunity, not due to a
constructive dismissal. The Plaintiff was not entitled to
compensation for constructive dismissal where, as here, there was
no contractual breach by the Defendant.
This case demonstrates that expressions of an intention to
promote an employee could be considered to create a
reasonable expectation of promotion. However, even where such
an expectation is legitimately created, the business interests of
the employer can still be determinative of when and how the
promotion occurs. Perhaps more importantly, when an employee is
alleging constructive dismissal, it is relevant to consider the
true motivation behind an employee's resignation. If
constructive dismissal is being alleged simply to gain a payout
when an employee intends to leave anyway for another opportunity,
this will undermine the employee's allegation they were
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