Today’s Agenda

1. Reasonable notice

2. Wallace v. United Grain Growers (“bad faith”

dismissals)

3. Employee’s duty to mitigate after termination

4. Constructive dismissal group problems

5. Short lecture on constructive dismissal

6. Ways to avoid wrongful dismissal claims

7. Start on privacy law

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 “Reasonable Notice”

What primary factors do courts look at in

determining reasonable notice where no
cause for termination?

1. Age of employee
2. Length of service
3. Level of responsibility and skills
4. Availability of similar positions (Bardal
case)

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 “Reasonable Notice” (cont’d)

Also, do not forget the secondary factors

that play some role in the length of notice!

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 Adding “Bad Faith” as a Factor
In 1997, the Supreme Court of Canada,
added another factor to the determination
of what constitutes “reasonable notice” in a
case called Wallace v. United Grain Growers

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 “Bad Faith” as Factor

Distribute handout on Wallace v. United

Grain Growers, and review it

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 What is Firing an Employee in “Good
Faith”
Courts have said that to terminate the
employment of an employee
in good faith, the employer must:

1. Be candid with the employee

2. Be reasonable in the manner of
termination
3. Be honest with the employee
4. Be sensitive in the process
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 “Bad Faith”

What sorts of behaviour may constitute a

“bad faith” termination?

1. An abrupt termination where employee did

not see it coming AND was of long service

2. Maintaining unsupportable allegations like

there was cause when there is no hope of
proving it
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 Other Examples of “Bad Faith”
3. Withholding termination pay under E.S.A.
until employee signs a resignation letter

4. Firing the employee while on sick leave or

just after returning from it

5. Leaking word that the employee had

been fired for cause when not true

6. Firing an employee in front of others

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 How Much “Bad Faith” Affects Notice

In a few cases, judges have added as

much as 6 months to the notice period
because the employee was fired in a “bad
faith” manner

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 Conclusion on “Bad Faith”

Any questions about what “bad faith”

consists of and how it affects
“reasonable notice”?

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 Employee’s Duty to Mitigate

“Mitigate” = minimize

Even if an employee is wrongfully

dismissed, the law imposes an obligation on
an employee to use his/her best efforts to
minimize their losses from the termination.
How would an employee do that?

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 Onus on Employer

Onus is on the employer to prove the

employee has not taken reasonable steps
to find alternative employment. How would
the employer do that?

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 Proof of Failure to Mitigate

Hire an employment expert to show there

was work available in the employee’s field
for someone with his/her qualifications and
experience if the employee had done a
thorough job search. What sources would
the expert consult?

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 Effect of Failure to Mitigate

Suppose the employer proves that the

employee could have found suitable
alternative work in about 3 months. What
is the effect of that on employee’s claim
for damages of say 12 months pay in lieu
of notice?

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 Constructive Dismissal of an Employee

GROUP PROBLEMS

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 Constructive Dismissal

Does an employer have the legal right to

unilaterally change a fundamental term in
the employment contract once it is formed?

Unilateral = without the other party’s

consent

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 Constructive Dismissal (cont’d)

If one party to a contract tries to change

a fundamental term of the contract
without the other party’s consent, what
do we have?

A breach of contract!

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 Constructive Dismissal (cont’d)

What is another word for a breach of

contract in the context of an employer-
employee relationship?

“Wrongful dismissal”

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 Constructive Dismissal (cont’d)
When an employer unilaterally
changes a fundamental term of the
contract of employment, and the
employee refuses to subsequently
consent to it, what do we call the
situation?

A constructive dismissal!!
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 Constructive Dismissal (cont’d)

How does an employer avoid constructive

dismissal?

Get the employee’s consent before

making the change to a fundamental term!

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 The Nature of a Fundamental Change

Which changes to an employment contract

are considered fundamental ones?

1. A significant lessening of job

responsibilities. Why?

2. Any reduction in remuneration.

Why?
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 The Nature of a Fundamental Change
(cont’d)
3. A significant change in the geographic
location of the workplace

4. Any violation of the law of employment by an

employer

5. Creating or allowing to continue a hostile

work environment

6. Significant changes in hours or in scheduling

of work

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 The Nature of a Fundamental Change
(cont’d)

The presence of any one of these 5

changes will constitute constructive
dismissal of the employee and entitle
him/her to sue for damages for wrongful
dismissal at common law

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 Onus of Proving Constructive
Dismissal

In 2011, the Ontario Superior Court held that

the onus is on the employee to demonstrate
that changes in working conditions were of a
fundamental nature and were done
unilaterally without the employee’s
acquiescence (Kafka v. Allstate Insurance
Company of Canada, 2011 ONSC 2305
(CanLII)
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 Worker Choices
When confronted with a constructive dismissal, the
employee may:

1. Accept the unilateral change(s) and thereby agree to

them and the amendment of the employment
contract
2. Treat the employment contract as terminated, leave
the employment, and sue for damages for wrongful
dismissal
3. Reject the new terms, remain working with the
employer under the “new” terms, and sue the
employer for constructive dismissal (see Russo v.
Kerr, 2010 ONSC 6053 at p. 443 in Textbook)
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 Conclusion of Constructive Dismissal

QUESTIONS??

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 Ways to Avoid Wrongful Dismissal
Claims

What are some ways to avoid or

minimize wrongful dismissal claims?

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 Conclusion of Termination

QUESTIONS ???

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 The end!

… for now 

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