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Constructive Dismissal

Ontario court refuses to certify class action based on claims of constructive dismissal and breach of ESA

Jurisdiction: - Ontario
Sector: - Insurance

In Kafka v. Allstate Insurance Company of Canada, 2011 ONSC 2305 - which was issued on April 12, 2011 - the Ontario Superior Court of Justice refused to certify a propsed class action that was based on allegations of:

  • constructive dismissal; and
  • a claim for termination pay and/or severance under the Ontario Employment Standards Act.

The claim pertained to a general announcement letter that Allstate issued on July 24, 2007, to approximately 350 to 450 active agents (employees) in Ontario, advising that effective September 1, 2009 a revised product distribution model and agent compensation system would be implemented.  The new model was then phased in from September 1, 2007 through 2009. 

The court summarized the issue on the certification motion (application), and its decision, as follows:  read more »

Employee's stress due to nature of job not employer's improper conduct; no construtive dismissal

Jurisdiction: - Canada/Federal
Sector: - First Nations

Kade v. Chippewas of Nawash Unceded First Nation [2011] C.L.A.D. No. 101 (Mole)

Employee who was “laid off” during recession was not required to return to same employer to mitigate damages

Jurisdiction: - British Columbia
Sector: - High Tech

Emmanuelle Renard ("Renard") was a valued with 12 years of service when her employer, Facet Decision Systems inc. ("Facet"), reluctantly laid her off in July 2009 because of the economic downturn.

Facet subsequently realized that it was not permitted to impose a layoff, and that the effect of a layoff was in fact a dismissal without cause. As such, a few months later, Facet offered to re-employ her in the same position.

Renard refused the offer of re-employment and instead commenced a wrongful dismissal lawsuit. Facet took the position that she had failed to mitigate her damages by not accepting her job back.

Court's Decision

Renard took the position that she was not required to return to Facet for three general reasons.

First, she argued that the relationship had broken down and become poisoned, making it impossible for her to continue working for Facet. The court rejected this argument, pointing to the following:  read more »

Lawyers call for reform of BC Employment Standards Act "temporary layoff" provisions

Jurisdiction: - British Columbia

I briefly discussed the Besse v. Dr. A.S. Machner Inc., 2009 BCSC 1316, decision in a post I wrote in October 2009 ("BC Employment Standards Branch announces change in how Act's "temporary layoff" provisions to be applied").

Besse confirmed that the temporary layoff provisions in the BC Employment Standards Act ("ESA") do not modify the common law such that all employers have the right to temporarily layoff employees for up to 13 weeks in a 20 week period without being exposed to a constructive claim. 

Rather, the provisions in the Act simply qualify employment agreements in which the right to lay-off has already been expressly agreed to by the parties. (i.e., in such a case, the parties cannot contract for a temporary layoff period that is greater than 13 weeks in a period of 20 weeks).  read more »

Employee on maternity leave was constructively dismissed when employer took steps to dissolve operations

In Lewis v. Terrace Tourism Society, 2010 BCCA 346, the majority of the BC Court of
Appeal found that the Executive Director ("ED") of the Tourism Terrace Society (the "Society") was constructively dismissed when the Society took steps to dissolve its operations while she was on maternity leave.

Background

The ED commenced her employment with the Society in May 2004.

At the end of 2006, she started a maternity leave that was scheduled to run until January 2008. An interim ED was hired to replace her.

Two weeks after the ED commenced her maternity leave, the Society determined that it was in dire financial straits. It took several immediate steps to deal with the situation, including laying off the interim executive director and removing the ED's signing authority on its bank accounts.

A month later, the Society passed a "dissolution" resolution in which it voted to:  read more »

Tort of negligent infliction of mental suffering not available in employment context, ONCA rules

In an important decision that came out on May 28, 2010 - Piresferreira v. Ayotte, 2010 ONCA 384 - the Ontario Court of Appeal ruled that employees cannot sue their employers for the tort of negligent infliction of mental suffering, at least in Ontario.

Background

At the time of the incident that led to the termination of her employment with Bell Mobility, the plaintiff, Ms. Pieresferreira, was an Account Manager, had 10 years service, was 60 years olds, and had received mostly excellent performance reviews.

As set out by the Court of Appeal, her supervisor, Mr. Ayotte, was a "critical, demanding, loud and aggressive manager" who was known to "swear at employees, had a temper and would bang his fist on the table to make a point" (para. 5).  read more »

British Columbia's "Employment Law Conference 2010" (CLE)

As I noted in my post a few days ago, I presented a paper on The Law on Workplace Investigations: An Update on Key Developments on May 13, 2010 at the BC "Employment Law Conference 2010" Continuing Legal Education (CLE).

The other presenters on Day 1, and their topics, were:  read more »