The Ontario Court of Appeal recently gave employees and
employers a valuable reminder: a breach of an employment contract
does not, in and of itself, constitute a constructive dismissal.
Even if the breach translates into hundreds of thousands of dollars
not being paid.
In Chapman v GPM Investment Management,
the former CEO and president of GPM, a real estate management
company, claimed he had been constructively dismissed by GPM after
GPM failed to pay him his entire bonus.
The employment contract stated that the employee was to be paid
a percentage of GPM's pre-tax profit as a bonus. When
calculating the employee's bonus, GPM decided to exclude the
profit it had earned on the sale of a certain property. The
employee disputed this calculation, which had reduced his bonus by
For an employee to successfully argue that he or she was
constructively dismissed by a unilateral act, he or she must
demonstrate that (1) the employer breached the employment contract,
and (2) the employer substantially altered an essential term of the
The trial judge had found that GPM's bonus calculation was
incorrect and that the employee was entitled to the $329,687. Thus,
GPM had breached the employment contract. However, the Court of
Appeal upheld the trial judge's holding that the dispute
between the employee and GPM was merely a dispute over interpreting
the employee's bonus scheme. In other words, GPM had not
altered the employment contract.
The Court of Appeal highlighted that, once the bonus wasn't
paid, the employee could have pursued dispute resolution
alternatives to settle the disagreement. Suing GPM was not his only
option. Thus—despite the large sum of money GPM had refused
to pay its employee—the Court of Appeal ultimately determined
that the employee had not been constructively dismissed.
Written with the assistance of John Schudlo, articling
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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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