Canadian Employment Law Today - sample

STUART McKELVEY HALIFAX 2 | May 1, 2019 with Brian Johnston Ask an Expert Have a question for our experts? Email jeffrey.smith@habpress.ca. Canadian HR Reporter, 2019 Ask an Expert Changing shift schedule and days off Question: If an employee's shift times and days off are changed without the employee's consent but the employee's pay remains the same, is there a risk of constructive dismissal? Offering dismissed employee job back If an employer offers a terminated employee her job back after the employee files a wrongful dismissal lawsuit, is that a reasonable way to resolve the matter? Answer: It may be, but it's a long shot. If the employee wants to return, then it's easy. But if the employee is not keen to return, it is ques- tionable as to whether the non-acceptance of the offer would be a failure to mitigate. An employee's duty to mitigate was con- sidered in Evans v. Teamsters Union No 31. In that case, an employee worked in a union office for more than 23 years and was dis- missed without cause. e employee said that he was entitled to 24 months reason- able notice. ere was an exchange of cor- respondence between the lawyers. No law- suit was commenced. e union continued to pay the employee his salary and benefits. e union then sent a letter requesting that he return to his employment to serve the balance of his notice period. e em- ployee replied that he would return to work, provided that the union immediately withdrew its termination letter, which the union was not prepared to do. As a result, the employee brought an action for dam- ages for wrongful dismissal. e trial judge ruled that the union had not shown that the employee had failed to mitigate damages by refusing to return to the workplace from which he was fired. e union successfully appealed. e Court of Appeal held that the employee had failed to act reasonably with respect to the job of- fer, and that this was a failure to mitigate damages. e employee appealed to the Supreme Court of Canada (SCC), which dismissed the appeal. e SCC held that a reasonable person would have viewed the employment offer as a bona fide employment opportunity; the relationship between the employee and the employer was not seriously damaged and, since the employment terms were the same, it was not unreasonable for him to return to work. In other words, a reasonable person is ex- pected to take available employment if the working conditions are not substantially changed, the salary is the same, and if the relationship between the employee and em- ployer is not damaged. However, a funda- mentally changed set of employment terms in a now-toxic work environment would be too much. As stated in Evans, "the critical element is that an employee not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation." Recognizing that it is likely that time has passed between the termination, the com- mencement of the wrongful dismissal law- suit, and the offer to return to work, a court could rule that the employee was not obliged to return and the employee's failure to do so did not constitute a failure to mitigate. Having said that, it may be that the em- ployee is perfectly happy to return to the former job and the employer can make suf- ficient amends for the dismissal that the employee will be satisfied with. Sometimes it happens that lower-level management, for example, dismiss an employee and sen- ior management decides that it was not a good idea to expose the organization to sig- nificant liability. e senior management will then seek to reset the clock by reinstat- ing the employee. It is tricky, but it can be done. However, it will be questionable as to whether the employer can say that the fail- ure to accept the old job back is in breach of an employee's duty to mitigate. For more information see: • Evans v. Teamsters, Local 31, 2008 SCC 20 (S.C.C.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com. Answer: ere is constructive dismissal risk. A constructive dismissal is a fundamen- tal change to terms and conditions of em- ployment. Clearly employment terms are being changed in this instance; the ques- tion is whether that change is fundamental. e test for establishing constructive dismissal is through the eyes of the affect- ed employee acting reasonably. erefore, it depends. For some employees, changing shift times and days off may not be a prob- lem; some may welcome it. However, other employees, due to their own personal cir- cumstances, may find this problematic. e applicable law was stated by the Su- preme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission. ere are two instances where constructive dismissal can arise: first, where a single uni- lateral act by the employer creates a substan- tial change in the employee's employment contract; or second, where a series of acts by the employer shows an intention to no longer be bound by the employment contract. e first instance requires that the em- ployee establishes: 1) that the employer made a unilateral change which breached her employment contract; and 2) that the breach substantially altered an essential term of the contract. e court would con- sider whether an express or implied term has been breached and whether the breach was serious enough to amount to con- structive dismissal. A breach may include changes to the employee's compensation, work assignments, and/or place of work that are both unilateral and substantial. However, if an express or implied term of the employment contract gave the em- ployer the authority to make the change, or if the employee consents or complies with it, the change is not a "unilateral act" and will therefore not constitute a breach (or amount to constructive dismissal). Furthermore, there is no requirement that the employer actually intends to no longer be bound by the employment con- tract; the perspective is objective and that of a reasonable person in the same cir- cumstances as the employee. However, evidence of the employer's intent and good faith can be relevant to the court in deter- mining whether there was a breach. e second instance does not require a particular act that breaches the employ- ment agreement, such as a change in com- pensation or assignments. Rather, con- structive dismissal can result from a course of conduct that cumulatively demonstrates that the employer no longer intends to be bound by the employment agreement. Similar to above, the standard is that of a reasonable person in the same circum- stances as the employee and not whether the employer actually intended to no longer be bound by the contract. erefore, the answer to this question unfortunately is that "it depends…." For more information see: • Potter v. New Brunswick (Legal Aid Ser- vices Commission), 2015 SCC 10 (S.C.C.).

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