Employer began negotiating a buyout of the employee's
contract. Before any deal was made, the employee went on sick
leave. During the leave period, the employer suspended the employee
with pay and delegated his powers to another employee.
At the same time, but unbeknownst to the employee, the employer
prepared a letter of termination. When the employee received the
notice of suspension, he requested reasons for it. After receiving
none, he considered himself constructively dismissed and sued.
An employee must prove one of two branches to establish
(i) identify an express or implied contract term that has been
breached and determine whether the breach is sufficiently serious
to constitute constructive dismissal; or
(ii) determine whether, after reviewing the cumulative effect of
past and present acts by the employer, the employer no longer
intended to be bound by the employment contract.
For the determination of the first branch, the Court must ask
whether, at the time the breach occurred, a reasonable person in
the employee's situation would have felt that the
essential terms of the employment contract were being substantially
changed. In making this determination, the court cannot consider
evidence of information that was not known to the employee (such as
the employer's termination letter that had not been
After setting out the law referenced above, the Supreme Court of
Canada (five person majority) considered that, in light of:
(i) the indefinite suspension; and
(ii) the fact that the suspension was not authorised by the
employment contract and was a substantial change to it,
there was a constructive dismissal under the first branch of the
test. The termination letter was not to be considered, but would
have been the icing on the cake. The minority agreed with the
result, but would also have considered the termination letter.
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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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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