A recent decision of the Ontario Superior Court of Justice has
reinforced an employer's ability to re-organize work flow and
adjust employee responsibilities. One of the main roadblocks that
an employer will face any time an employee's job title or
responsibilities are changed is a claim of constructive dismissal.
Constructive dismissal occurs when an employer has made changes to
fundamental aspects of an employee's working conditions (e.g.
wage, title, work location, hours of work, etc.) and these changes
amount to a repudiation of the employment contract. Unilateral and
fundamental changes to the employment relationship may result in an
employee claiming they have been constructively dismissed and are
owed statutory notice or common law reasonable notice.
In the decision of Bolibruck v. Niagara Health System, 2015 ONSC
1595 the Plaintiff claimed she had been constructively
dismissed after her role as a Health Program Director
("HPD") was adjusted to include some non-clinical work
and a new reporting structure. In 2010 the plaintiff, after being
in a HPD role at the Niagara Falls hospital, was moved to the new
St. Catherine's General Hospital. Despite maintaining the HPD
title, the plaintiff was given new and high profile work relating
to transition work needed for the new hospital. Ms. Bolibruck was
ultimately unhappy with the changes to her role and viewed the
modification as a demotion. Furthermore, she claimed that the HR
supervisor had acted in a verbally abusive manner towards her and
she was moved to a smaller office.
Justice Nightingale found that the changes did not support a
claim of constructive dismissal. It was made clear to the plaintiff
that she would maintain her salary, benefits, and title as a
Director. The evidence revealed that the plaintiff was specifically
told she could remain in her previous office and chose not to.
Further, her new reporting structure now included direct contact
with the Hospital's Chief Planning Officer, viewed as a status
enhancement by Nightingale J. The role of transitioning services to
the new hospital was of critical importance and it was clear that
the hospital held the plaintiff in high regard.
Justice Nightingale concluded that the role changes fit squarely
within an employer's implied right to reasonably reassign an
employee to other duties. There was clear evidence that all
HPD's had varying duties throughout their years of service, and
the plaintiff's employment contract did not contain an express
or implied term that her duties would remain the same at all times.
In the words of Nightingale – "The employer is
allowed a certain degree of latitude to reorganize and modify job
descriptions and with respect to upward and lateral changes in the
responsibilities of its employees provided that the changes are not
significant enough to constitute a constructive
Despite finding that no constructive dismissal occurred,
Nightingale J. conducted an assessment of the potential damages if
the claim was successful. This analysis led to a finding that the
plaintiff, if successful, had failed to mitigate her damages by
accepting the new position and would have been owed nothing. This
is another positive finding for employers, illustrating that in
some cases an employee is expected to accept a new position in
order to limit/eliminate their damages. The question is whether a
reasonable person would accept such an opportunity and requires
examining whether salary and working conditions are similar, the
work is demeaning, and if the working relationship has
deteriorated. In this case, claims that the working relationship
with the plaintiff's supervisor had become hostile was
This case is positive for employers on a number of fronts and
reinforces an employer's right to make reasonable adjustments
to employee's roles and responsibilities as the employment
relationship progresses. Click
here for a list of our team members who can assist when
considering workforce reorganization or if you're faced with a
constructive dismissal claim.
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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