Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Employee goes too far with constructive dismissal threat Employee didn't like changes to job and threatened legal action; employer took it to mean she didn't want to work there anymore BY JEFFREY R. SMITH A NUNAVUT employer did not construc- tively dismiss an employee when it made minor changes to her job duties and it was the employee's threat of a constructive dis- missal suit in response to those changes that ended the employment relationship, the Nunavut Court of Appeal has ruled. Sarah Kucera was hired on July 1, 2009, as an executive assistant to the president of Qulliq Energy Corporation, a Crown corporation responsible for the delivery of electrical power in the territory of Nuna- vut. e president's office was in Iqualuit and Kucera moved from Toronto to take the job. Before too long, Kucera began having difficulties with Qulliq's director of human resources, who was based in another town. When they met, the director of HR said there were concerns about the trustwor- thiness of the corporate legal counsel and the corporate secretary — two people with whom Kucera worked closely. In early September 2009, Kucera for- warded an email she had received from the director of HR about arrangements for a board of directors meeting to the corporate secretary. e director of HR reprimanded Kucera for passing along the email and re- minded her of their conversation about the corporate secretary's suspect trustworthi- ness. Functional review led changes in duties In the fall of 2009, Qulliq conducted a func- tional review of its staff and some positions, including Kucera's, were downgraded. Kucera's salary and annual raises weren't af- fected, but her duties related to the collec- tion and distribution of briefing notes for the minister were changed. When the corporate secretary position became vacant, Kucera assumed its duties for a six-month probationary period. At the end of the six months, she received positive evaluations and a salary increase for per- forming the additional duties. Unfortunately for Kucera, her relation- ship with the director of HR continued to worsen, though it seemed overall the cor- poration respected her — Kucera was asked to be a part of Qulliq's bargaining team for the next round of negotiations with the union. In April 2010, the director of HR drew up a complaint of harassment against Kucera — of which Kucera was not aware at the time it allegedly happened. e HR director proposed mediation but Kucera declined, saying it was a "sham" because the proposed mediator reported to the HR director. In June, Kucera received a letter from the president of Qulliq that addressed her job expectations, clarified her terms of employment and outlined the process for performance reviews and dealing with complaints. Soon after, while she was on vacation, she received an email advising her the position of corporate secretary — in which she had expressed an interest — was posted but would close before she returned. When Kucera did return from her vaca- tion, she discussed it with the president. He agreed to extend the date for applications but Kucera ultimately decided not to apply for the job. Kucera was uncertain of her future with Qulliq and took sick leave. During her sick leave, she consulted with a lawyer regarding a potential lawsuit against the corporation for the changes to her job. On Aug. 5, Kucera's lawyer sent a letter to Qulliq outlining "the removal of core du- ties from her position and a process of pro- gressive marginalization from the decision making process of the corporation." e letter listed several events including "sig- nificant changes in terms of her duties, re- sponsibilities and reporting structure, such that her overall authority and position with the corporation have been diminished." It concluded by stating that Kucera was in po- sition to sue for constructive dismissal and, if Qulliq didn't want to continue with her employment, she would be willing to nego- tiate a termination package. Kucera also in- dicated that, in the event Qulliq wanted to end the relationship, she would be willing to stay in her position for as long as necessary for negotiations for a severance package to take place and were making progress. Qulliq replied by denying any actions to marginalize and change the nature of Kucera's duties and said she was expressing "not only your unwillingness to remain loy- al and committed to your employment… but also demonstrates clear insubordinate behaviour such that Qulliq is unable to con- tinue to place any level of faith in your in- tentions any longer." e corporation said its trust and confidence in Kucera, which was essential to the position of executive assistant to the president, was irreparably broken and the threat of a constructive dis- missal suit provided just cause for dismiss- al. Qulliq terminated Kucera's employment effective Aug. 23. Kucera filed her lawsuit for constructive dismissal and Qulliq responded by arguing her letter asserting constructive dismissal was "for the sole purpose of extracting sev- erance payment from (Qulliq) in the face of her own resignation." e Nunavut Court of Justice agreed with Qulliq, finding Kucera had not been constructively dismissed and her letter was a repudiation of the employment relation- ship, which allowed Qulliq to terminate the employment relationship. Kucera received a salary increase for taking on extra du- ties and her salary didn't change from the downgrade of her position. In addition, the employer should have some flexibil- ity to restructure a position in response to changes in circumstances and the only as- pect of Kucera's job that really changed was spending less time on preparing materials for the Minister of Energy — but not a com- plete loss of that responsibility, said the trial court. Kucera also claimed her working environ- ment was hostile, but the trial court found the difficulties between Kucera and the HR director were simply the result of an inter- personal conflict that wasn't enough to cre- ate conditions leading to constructive dis- missal — especially since the relationship between them was professionally supportive of Kucera at times. Employee's letter repudiated employment contract: Court e trial court also found Kucera's letter wasn't an attempt to resolve her differences with Qulliq but made clear she no longer wanted to work there. ere was no option in the letter for things to be resolved and for Kucera return to work permanently, said the trial court. In addition, the trial court agreed Kucera's position made her privy to sensitive and confidential information and required a significant amount of trust by her employer. NO INDICATION on page 7 » There was no option in the letter for things to be resolved and for the employee to return to work permanently.

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