Canadian Employment Law Today

CELT June 26 2013.qxp:celt 467.qxd 13-06-17 10:36 AM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: CONSTRUCTIVE DISMISSAL Employee's role wasn't rigidly defined at outset of employment ...continued from page 4 job, the reporting structure and the overall nature of the IT function within the company. Meyers reviewed the offer and advised Chevron that, despite the fact his remuneration did not change, he could not accept the offer. Instead, he alleged he had been constructively dismissed, which in turn entitled him to receive a severance compensation package. Chevron responded by advising Meyers the position offered was at the same salary and grade level as his previous position. It also pointed out that at law, Meyers was under an obligation to mitigate his damages and accept the job, even if the position were substantially different from his previous position and resulted in his constructive dismissal. Chevron urged him to reconsider, accept the offer and maintain his employment with Chevron. Meyers declined to do so and sued for notice of the constructive termination of his employment. In assessing whether or not there had been a fundamental and unilateral change to the employment relationship between Chevron and Meyers, the court held that Meyers had failed to establish he had been constructively dismissed. The court made some interesting comments on the applicability of the concept of constructive dismissal, where an employee is hired to perform a specific position as opposed to those hired on the understanding they would likely change positions during their employment. On this point, the court stated: "I am not satisfied that there should be a term implied to Mr. Meyers' employment contract preventing Chevron from varying the subject matter of (his) management responsibilities. In my view, the evidence does not support the view that the parties contemplated that Mr. Meyers' role was so rigidly defined. As noted above, Mr. Meyers' supervisory role had diminished over time. An employer requires some latitude to structure the affairs of its operation, and such an inflexible term which shift the balance too far in favour in the employee." The court found the changes did not go to the 'root of the contract.' In fact, the employee would continue to assume many of his former responsibilities and was offered one of the senior positions in a significantly downsized operation. The breaches alleged by Meyers were not found to go to the "root of the contract." In fact, the court found he would continue to assume many of his former responsibilities and was offered one of the senior positions in a significantly downsized operation — and he was viewed as a valued employee. The court went so far as to say that even if a term was implied that his job responsibilities could not be slightly altered, the breach of the term in the circumstances of the case would not be serious enough or of a nature to constitute repudiation of the employment contract by Chevron. And, finally, the court found Meyers acted hastily and resigned his position without determining whether or not his concerns regarding the job offered would be borne out. Drawing the line for employers The Meyers case is compelling for a number of reasons. First, there appears to be an explicit recognition by the court of the ability to restructure the role of an employee where the history of the position suggests lateral movement was both permitted and relatively common. Second, from an evidentiary perspective, the court took great care to examine the nature of the restructuring and impact on the position and duties going forward. And finally, the fact Meyers resigned and did not even attempt to work in the new position undermined his ability to demonstrate that the restructuring resulted in a unilateral and fundamental change to his employment contract. CELT For more information see: ■Farber c. Royal Trust Co., 1996 CarswellQue 1158 (S.C.C.). ■Meyers v. Chevron Canada Limited, 2013 CarswellBC 665 (B.C. S.C.). Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include managing terminations, the risks of work-at-home employees, sexual harassment and transgendered employees, communication of workplace policies, and unpaid internships. You can view the blog on www.employmentlawtoday.com. ABOUT THE AUTHOR Lorenzo Lisi Lorenzo Lisi practices employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or by visiting www.airdberlis.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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