Canadian HR Reporter

www.hrreporter.com 9 "The court said… it was reasonable in the circumstances for him to take longer than perhaps an average employee would." Andrew Vey, Vey Willetts would without those secondar y circumstances at play." For the most part, most employers would assume that, after two years, they were largely in the clear when it comes to constructive dismissal, says Paul Boshyk, a partner at McMillan in Toronto. But it really depends on the facts of each case, he says. "Even the court acknowledges that it was an extraordinarily long time. But then the court does go on to say, 'Look, there was demonstrated evidence of mental health issues that the employee was experiencing as a result of the change.' And I think that that kind of evidence would support an argument that the employee hasn't acquiesced to a change, notwithstanding the particularly long delay." When you're dealing with whether or not there's condonation, it depends on the circumstances, says Sider. Employers may ask, "If [employees] just keep coming to work, how long do I have to wait before I'm out of the woods and they've accepted the change?' And I always say, 'Well, I can't really give you a hard and fast number… If it's a normal job and normal circumstances, you'd normally expect if someone keeps working for two or three months and doesn't say anything that they've accepted the change,'" he says. "From an employer's perspective, saying that the trial judge did not err in finding that McGuinty was construc- tively dismissed, "despite the lengthy passage of time that he took to accept the [funeral home's] repudiation and sue." The general manager did not condone his employer's conduct, said Huscroft, "not least because [McGuinty] was incapable of working as a result of the depression and anxiety he suffered because of that conduct." Constructive dismissal considerations The employer decided to challenge the length of time that it took for McGuinty to assert constructive dismissal, says Andrew Vey, a partner at Vey Willetts in Ottawa. And while the court of appeal agreed that it was a long time, it also said other factors were involved. For one, this employee was suffering from serious health effects. Secondly, it's important to look contextually at the overall impact of this particular change of business on the employee, who signed a contract that was intended to bridge him to retirement and included a non- competition provision, says Vey. "The court said between the two — the health factors at play and the long-term consequences to this man's career and working vocation — it was reasonable in the circumstances for him to take longer than perhaps an average employee obviously, you need to be careful, and this is why it's always best to either provide sufficient notice for a change or to get the employee to agree and give them some consideration for the change… without simply imposing the change and risking a constructive dismissal." Fixed-term frailties The McGuinty case also serves as an important reminder of the perils of entering into fixed-term contracts because of the quantum of damages, says Boshyk. While there are occasions where it's appropriate, such as commer- cial transactions or to retain top-tier talent in a competitive market, in the normal course, these contracts should be used sparingly, with an airtight early termination clause, he says. "Our advice is almost always to instead use an indefinite-term contract with clear parameters around what t e r m i n at i o n e n t a i l s . O t h e r w i s e , employers are taking a big risk, not just because of the way that damages in fixed-term contract cases are assessed but also because of the scrutiny that courts give to termination provisions," says Boshyk. "Even if you draw up the fixed-term contract with what you think is an airtight termination clause, there's still always a risk that a court may take a different view, in which case the employer has just opened itself up to significant damages for the rest of the term." It's hard to understand why employers enter into term contracts given the risks, says Sider. "Most employers, they say, 'Well, this is a way for us to make sure that when the employment comes to an end, we can walk away and we don't have to pay anymore…' But the problem is that employers don't think enough about what's going to happen if things go wrong," he says. "If you get rid of them and you're wrong about cause, you potentially are facing a massive hit in terms of damages." CHRR The McGuinty Funeral Home in Thunder Bay, Ont.

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