Constructive dismissal claims tricky

This article was originally published by The Hamilton Spectator.

A “constructive dismissal” is a situation in which nobody says “you’re fired” but the employer has done things that show they feel they are no longer bound by the core terms of the employment relationship.

Put another way, a constructive dismissal is a significant change to the terms of a person’s employment without notice and without their consent.

It can happen by way of one or two big changes or through a thousand mosquito bites or a combination of both.

Whatever the situation, in a courtroom, the onus is on an employee to prove on a balance of probabilities they have been constructively dismissed. Success is not assured.

Ralph worked for a ski resort in British Columbia for 16 years. He worked his way up to the position of executive chef running food operations. His wife also worked in management at the resort.

The ski area was so remote you had to take a 20-minute snowmobile ride to get there.

In the fall of 2019, Ralph had a performance review and his boss told him that although the food quality was excellent, he had to work on his communications with his staff. There had been complaints and some turnover.

In January 2020, Ralph’s wife was terminated from her employment. Ralph claimed he was marginalized within his own workplace after that date. The employer did not circulate a management email about his wife’s termination to him but sent it to everyone else. Employees treated him distantly and ignored him. In February 2020, Ralph felt his workplace had become so toxic he needed to take a medical leave. That same day, he was accidentally included in a text message from the human resources person to other kitchen management staff announcing the leave and indicating that she needed to meet with each of them quickly. Ralph took this as further evidence that something was happening at his workplace to exclude him. Given he was now on medical leave, it is a bit baffling how he could have thought meetings without him were exclusionary.

Ralph’s medical leave ended on March 16, 2020. On that date, he had a meeting with the human resources representative and his boss. He was told that as a result of the pandemic, the lodge was in the process of winding down operations and would be closing two days later. The kitchen shifts had already been scheduled by then and Ralph did not need to go to work but would be paid in any case. Ralph was told not to attend at the lodge because the employer was in the process of removing all guests and nonessential staff. His boss suggested he could work from home and use the time to build a communication plan to address his staff’s concerns as previously raised in the fall. Ralph would present the plan to his staff at a meeting on March 19, 2020, just before the final closure.

Ralph claimed that the next day, the HR manager told him he could never return to the lodge but the judge did not buy it. He had already been told he was supposed to present a communication plan to the staff. Ralph also claimed she told him his position was changing.

Later that day, Ralph sent a note that said “Recent developments, including a pattern of socially isolating me have amounted to a repudiation of my contract. Including for health-related reasons, I feel I have no option but to accept that repudiation, with the effect that I have been constructively dismissed. You will hear from my lawyer in due course.” In court, Ralph claimed that denying him access to the resort and therefore eliminating the possibility of him carrying out most of his job duties was a significant change without notice and consent. The judge did not agree. All of those changes were temporary and flowed from the fact that that was the week the world was shutting down as a result of the pandemic.

Ralph claimed that on the 16th, the boss told him not to communicate with his staff, which was also a constructive dismissal. The judge found it was a reasonable request to allow Ralph to prepare his communication plan for the staff meeting on the 19th and made sense. This, too, was a temporary measure.

With respect to the toxic work environment argument, the court was not persuaded. Clearly Ralph was disgruntled by his wife’s termination. Excluding Ralph from the termination communications with respect to his wife was respectful, not exclusionary. To the extent that things were awkward in the workplace after Ralph’s wife’s termination, that came more from Ralph than anyone else. He was vocal about his displeasure with the decision.

Ultimately, Ralph acted precipitously in claiming constructive dismissal. He simply did not have the goods. Ralph ended up paying his own legal costs and much of the resort’s.

Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com