Actions that would otherwise be justification for an employee to
claim constructive dismissal cannot be transformed simply by
"requiring" an employee's relocation to another
office or demanding that the employee accept an offer of
In Shirbigi v. JM Food Services Ltd.
(2014 BCSC 1927), the B.C. Supreme Court found that an employer
could not mask the fact that it had constructively dismissed the
plaintiff simply by relocating her place of work.
In Shirbigi, the plaintiff was hired by the defendant
pizza franchisor as a district manager ("DM") and made
responsible for overseeing, initially, 16 franchise locations. The
plaintiff was required to travel regularly between the various
locations to check up on their operations, and later lodged a
complaint with the defendant's senior management after having
the number of franchises which she oversaw jump from 16 to 23.
Not long after the plaintiff made her complaint, she was advised
that she would be training a group of new DMs and then put into the
position of Store Manager at one of the franchise locations. Prior
to that point, her work was based out of the corporate head office.
As a result, and in view of the "opportunity" being a
demotion, she refused and sued for damages based on constructive
dismissal. The Court did not accept the defendant's contention
that this change was made at the plaintiff's request.
Another factor in the decision to relocate the plaintiff was an
extramarital affair which she had with the defendant's CEO. The
CEO appears to have thought it would have been awkward to have the
plaintiff working out of the head office after their affair ended,
particularly since the CEO's wife also worked in that location.
Ultimately, the Court concluded that the defendant's CEO wanted
the plaintiff out of sight and mind and, thus, made the decision to
improperly change her workplace and position. However, the Court
found that these changes amounted to constructive dismissal,
despite the defendant's claims that they were allegedly
necessary, including for reasons of the plaintiff's job
The Court also ruled that the plaintiff was not under an
obligation to accept the Store Manager position in order to
mitigate her damages. Terminated employees are generally expected
to mitigate damages resulting from a dismissal. This can include
accepting a different position with the same company, so long as
the salary is the same, working conditions are not substantially
different, and where the personal relationships involved are not
acrimonious. However, in Shirbigi, the Court found that
the plaintiff was not obligated to accept the changed position for
two main reasons: first, the new position came with substantially
diminished responsibilities, and second, the franchise which the
plaintiff was to manage was owned by the brother of the CEO with
whom she had the extramarital affair that led to the constructive
dismissal. As a general rule, it is rare that a court will obligate
an employee to continue a work relationship that is so clearly
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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