part2 chap 15

• Constructive dismissal


  A type of wrongful dismissal where an employer makes substantial and unfavourable changes to the employment agreement without providing reasonable notice and explaining the consequences to the employee
• Constructive dismissal


  Employee can either: resign and claim damages for lack of notice, or reject the new terms and sue for constructive dismissal while remaining employed
• Legal test for determining constructive dismissal

  • Would a reasonable person in the employee's position find the changes imposed by the employer, cumulatively, to be unreasonable and unfair?
  • The employer's motives are generally irrelevant
• Changes that won't amount to constructive dismissal

  • Minor change to compensation (e.g. 5% reduction)
  • Minor change in job duties that doesn't represent a demotion
  • Change in reporting obligations
  • Minor geographic change in job location
• Changes to working hours and work scheduling

  • Significant changes (e.g. daytime to overnight hours, 40 to 20 hours/week) can result in constructive dismissal
• Cases of constructive dismissal due to changes in hours/scheduling

  • Pimenta v Boermans: Optometrist's hours reduced from 40 to 35, with salary and duties also reduced
  • Bookkeeping case: Hours increased from 20 to 30 per week, start time moved earlier, impairing ability to fulfil parental responsibilities
• Reasonable notice damages


  Employer must compensate employee for all wages lost during the reasonable notice period, including benefits and other compensation
• Aggravated damages


  Compensatory damages where employer acted maliciously in termination and committed an independent actionable wrong
• Punitive damages


  Non-compensatory damages to punish the employer for egregious misconduct in wrongful termination
• Wallace/Bad faith damages


  Compensatory damages where employer engaged in bad faith in the manner of termination, causing actual injury to the employee
• For aggravated damages, employee needs to show employer breached duty of good faith and fair dealing, not an independent tort