Will an employment contract be fundamentally changed if the
employer stops assigning work? This was the question tackled
by the Alberta Court of Appeal in its recent decision in Bonsma
v Tesco Corporation, 2013 ABCA 367. The Plaintiff
resigned and commenced an action for constructive dismissal after
the passage of a four-month period in 2004 when he did not receive
any work assignments from the defendant employer.
The Plaintiff, Clarence Bonsma, was employed by the Defendant,
Tesco Corporation, as a top drive supervisor whose duties consisted
of assisting customers with training, as well as set-up and service
of drilling equipment rented or purchased from Tesco. The contract
between the Plaintiff and the Defendant established rates for pay
but did not specify a particular minimum amount of work in a given
period of time. Finding that an employer had no duty to
provide a specific minimum amount of work at common law, the Court
considered whether such a duty could be implied into the terms of
the employment contract on the facts of this case.
Ultimately, on the facts before him, the Trial Judge was unable to
conclude that the employer had fundamentally changed the employment
contract so as to constitute constructive dismissal.
In considering whether an additional term could be implied into
the employment contract the Court of Appeal noted that this could
only be done if it was satisfied that such a term reflected the
intention of the parties at the time the contract was
entered. In order to make this determination, the Court of
Appeal reviewed the Trial Judge's findings of fact and found no
grounds on which to overturn them. At the end of the day, the
Court was not prepared to imply such a term into the employment
contract, and the Plaintiff's appeal was dismissed.
This decision raises a number of significant questions with
respect to the relationship between an employer and an employee,
and an employer's duty to provide work. Does this
decision mean that an employer can simply stop assigning work to an
employee? What if the length of time between assignments had
been six months, or a year? How does this decision fit
together with previous cases where a reduction in hours of work has
been found to amount to constructive dismissal?
The answers to some of these questions may be found in the
specific facts of this case, which are somewhat unusual, and may
not necessarily translate to other employment contracts. The
Trial Judge found, and the Court of Appeal agreed, that the
evidence supported the employer's argument that no guarantee of
work was intended. Specifically, the Court found that:
The Plaintiff was aware of periodic slowdowns in the
The nature of the work was cyclical, and the period in question
was a slow period for the drilling industry in Canada;
Other employees did not expect a minimum amount of work each
Other employees regularly worked other jobs to earn money in
There was a pattern of long gaps between work assignments not
just for the Plaintiff, but for other employees as well.
The Court of Appeal found that a guarantee of minimum amount of
work was not strictly necessary for the contract to be workable,
and so was not required under the "business efficacy
test". Further, the Court found that it was not obvious
that the parties intended such a term, such that it could be
implied under the "officious bystander test".
Finally, the Appellant raised the argument that, because the
maximum length of a temporary layoff under ss. 62 and 63 of the
Employment Standards Code is 60 days, any longer period
between work assignments would constitute a termination. The
Court rejected this argument finding that those provisions of the
Code are intended to provide a measure of certainty to
employees who are temporarily laid off; they do not have the effect
of implying terms into an employment contract where no temporary
lay-off has occurred.
The Court of Appeal ultimately found that the substance of the
appeal was a challenge to the Trial Judge's findings of fact,
and that it could not interfere with those findings. Such a
decision leaves an open question as to how the Court would approach
this issue on another set of facts.
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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