Employment Law: Dismissals

Okay, I have processed the new text and integrated the information into the existing study notes. Here are the updated notes:

• Part III explores the legal implications of how employment relationships end.
• This section covers resignations, retirements, and employer-initiated terminations.
• Employee obligations that persist after the employment relationship concludes are also examined.
• Common law distinguishes dismissals: those "with just cause" and those "without just cause" (wrongful dismissals).
• Establishing just cause allows employers to dismiss employees summarily, without notice or pay in lieu.
• This distinction between dismissals with and without just cause is considered an "all or nothing proposition."

Dismissals for Just Cause

• Chapter 13 addresses dismissals, focusing on misconduct constituting just cause under common law.

Dismissals Without Just Cause

• Chapter 14 explores dismissals without just cause, including constructive dismissals, and available remedies.
• Employers can minimize the risk of wrongful dismissal lawsuits.
• Employers dismissing without just cause must adhere to both statutory and common law reasonable notice.
• Common law generally provides more generous notice periods than provincial employment standards.
• Parties can contract out of common law notice via a termination clause, provided it meets legislative requirements.
• In such cases, employers need only provide the notice specified within the contract.

Employee Obligations After Employment

• Chapter 15 addresses post-employment obligations, including the duty not to disclose confidential info.
• In specific instances, this includes not soliciting former customers of the company.
• These obligations are known as post-employment obligations.

Resignation and Retirement

• Chapter 12 examines resignations and retirements where the employment relationship ends voluntarily.
• Learning outcomes covered include:
  • The importance of formal written acceptance of resignation.
  • The requirement for resignations to be voluntary and unequivocal.
  • Why an employer should not dismiss an employee who gives notice of resignation.
  • Employee obligations for notice of resignation.
  • The impact of eliminating mandatory retirement at age 65.

Introduction to Ending Employment

• The employment relationship may end through employee resignation or retirement.
• While seemingly straightforward, potential legal issues may arise for employers.

Formal Acceptance of Resignations

• A letter of resignation is typically binding, in the absence of coercion.
• Employees may retract resignations before the employer formally communicates acceptance.
• Employers should send a letter confirming acceptance to create a binding agreement.

Voluntary Resignations

• An employee giving notice of resignation is not usually entitled to wrongful dismissal damages.
• Only outstanding wages and vacation pay are owed, should this be the case.
• Once notice is given, employers cannot reduce wages or alter employment terms until termination.

Validity of Resignations

• To be valid, resignations need to be freely given.
• If employers give employees a "choice" between resigning or being dismissed, courts generally find that the resignation is not voluntary.
• Employers are then obliged to provide pay in lieu of reasonable notice or show just cause for dismissal.

Employee's Burden of Proof

• Once a resignation is tendered, the onus shifts upon the employee to prove it was not voluntary.
• The legal test to be applied is objective, considering if a reasonable person would believe the employee resigned voluntarily.
• Employees may claim constructive dismissal if an employer changed a fundamental term of employment.
• A court must determine if a reasonable person would believe that such a breach led to the resignation.
• Constructive dismissal is discussed further in Chapter 14.

Conduct Implying Resignation

• Resignation can be inferred from an employee’s conduct.
• Key elements of proof include an action from the employee that reaffirms the decision coupled with intent.
• An example would be an employee angrily leaving a manager's office indicating they are leaving and not returning, and subsequently not appearing for work the next day.
• The employer may infer the employment has ended, even without explicit words such as "I quit."
• If an employee expresses intent to stop work and returns their uniform and keys or informs co-workers of their departure, the employer may conclude the employee has resigned.
• A letter formally accepting the resignation finalizes termination agreements and is particularly beneficial if the employee’s intent is ambiguous.

Clear Notice of Resignation

• Courts will not infer resignation from vague or equivocal statements.
• An employee stating they plan to leave as soon as possible or are searching for another job, does not mean they have voluntarily resigned.
• An employee leaving work early without authorization due to anger or frustration is not considered to have resigned, but discipline may apply.

Requirements for Effective Resignation

• An effective resignation necessitates clarity and lack of ambiguity in subjective intention, objectively viewed.
• Brown (2013) states both an employee must objectively view the subjective intention and the resignation to consider if it is effective.
• Pollock v First Heritage Financial Ltd and Gilbert v Tandet Transport Inc demonstrate this requirement.

Pollock v First Heritage Financial, 2002 BCSC 782

• Six employees of a financial planning firm were unhappy about compensation changes.
• They requested a meeting about concerns that were repeatedly refused.
• They stated an unwillingness to work under the changes, and they would take action unless notified otherwise by the employer.
• The employer accepted their resignation in response.
• It was deemed that the employees were wrongfully dismissed and were entitled to pay instead of notice, as it was not an unequivocal notice of resignation.
• The employees had between 2 and 6 years of service, and received between 4 and 8 months pay in lieu of notice.

Gilbert v Tandet Transport Inc

• An employee was temporarily laid off, found a new part-time job, was later sent a recall, and was told his position would be forfeited if he didn't return.
• The employee left several messages inquiring about part-time or full-time options as he needed to keep the new job.
• The employer did not return his calls.
• The employer had them marked down as resigned, and an arbitrator claimed that the employee was actually dismissed instead, as they never formed the intent to resign.

Intention and Absence

• Coutlee v Apex Granite & Tile Inc, 2020 BCSC 315 details how intention to resign can sometimes be inferred by conduct.
• In this case an employee with a history of attendance issues refused to speak to superiors on numerous occasions, and was suspended and asked to leave the site.
• The employee later asked for a record of employment instead of returning, and it was inferred he had resigned.

Strategic Quitting

• Seth Godin discussed strategic quitting in "The Dip", stating difficult situations can lead to extraordinary results if you are in the right job.
• It can be a strategy if you are not in the right career or feeling burnt out.

Aspects of Strategic Quitting

• Consider changing jobs if you are experiencing serious mental health impacts that are affecting you, your relationships, or your family.
• Plan an exit strategy if there is upheaval like restructuring or being asked to relocate at the workplace.
• Be proactive, work on your resumé and build your professional network.
• Identify what causes dread when going to work, or introspect on any conflicts, boredom, or unpleasant tasks.
• This will help identify the problem and point in the best solution.
• Determine how your job fulfills your identity, purpose or long term goals if you feel disengaged or unproductive.

More Aspects of Strategic Quitting

• Most employers are happy to discuss more responsibilities if growth opportunities are unavailaible.
• Assess the seriousness of a situation when feeling like an outsider, and leave immediately if you experience harassment, feel unsafe or experience unethical behavior.
• Quitting may be right if you want to start your own business and you have a business plan and finances in order.
• Never quit due to anger, as this may burn bridges, and future employers may view your resignation as forced if failing.
• Hang on to a sinking company until you have a new job lined up, it will show experience and maturity to help your team/employer.
• Never quit until you have another job to negotiate, and assess if you can survive financially.
• Adapted from Chakravarty, 2018.

Employee Rescission of a Resignation

• An employee may try to withdraw their resignation before it takes effect.
• English v Manulife Financial Corp and Corporation of the City of Calgary v Calgary Police Assocation sic provide helpful examples for whether the employee can rescind their formal acceptance.
• In Manulife, the court had to determine if a rescission was valid after the employer accepted the notice and came to the conclusion that the employer was not obliged to rescind.

Key Details of Manulife

• English v Manulife Financial Corp, 2018 ONSC 5135 details how an employee must form an intention to resign.
• An employee notified the employer she would retire due to a computer system update, and was told she could rescind, and the employer eliminated the position.
• The retiree attempted to rescind, but was rejected, and the court ultimately determined that the original notice and offer to retire was accepted and binding, and was not coerced.

Calgary Police

• Corporation of the City of Calgary v Calgary Police Assocation [sic], 2021 CanLII 13286 (AB GAA) outlines how an employee must form an intention to resign.
• An employee submitted a letter of resignation after multiple consultations because he was seeking a position outside the corporation and received a formal offer.
• Prior to this he also grieved a lack of promotion without success.
• The arbitrator dismissed the grievance, ruling that the grievor was not provoked and had acted thoughtfully despite also requesting a rescission of his resignation.

Retracting Resignation

• Even if the employee says "I quit" it means nothing if they are clearly distressed, and they should be given a cooling off period.
• Levitt (2009) states that employers may have acted in reliance on the resignation given if the employee has tried to redact.
• If this occurs, Robinson v Team Cooperheat-MQS Canada Inc dictates that a Plaintiff who was bullied was wrongfully dismissed despite mentioning resignation numerous times.
• To avoid this the employer needs to review circumstances to determine if the offer was expressed unambiguously, whether it was in writing or not, and if the employee has tried to retract their resignation.
• The 2008 Bru v AGM Enterprises Inc British Columbia (BC) Supreme Court case highlights this by applying the principles of Honda Canada Inc v Keays regarding punitive and aggravated damages to the subject.

Bru v AGM Enterprises Inc, 2008 BCSC 1680

• An employee was being harrassed, and was forced to stay home and called the employer to state she was quitting.
• The following day the employee stated she was coming back to work, but the employer stated she was terminated instead.
• When sued, a BC Supreme Court ruled she had not resigned from her position and that her dismissal was wrongful.
• The court stated that the burden of proving the employee had resigned was on the employer.

Bru Damages

• The plaintiff was not entitled to punitive damages for mental distress from her dismissal in the absence of intentional infliction of mental stress.
• Hadley v Baxendale applies when mental suffering can be foreseen.
• Under the circumstances the plaintiff was awarded non-pecuniary damages due to breaching good faith.
• Non-pecuniary damages are money that are for not readily quantifiable items such as pain and suffering.

Mask Policy

• Benke v Loblaw Companies Limited, 2022 ABQB 461 questions whether compliance with a mask policy constitutes resignation vs. constructive dismissal.

Facts of the Mask Policy Case

• In 2020 Loblaw instituted a masking policy with exemptions containing underlying medical condition, unable to place, remove or use a mask and persons to be accommodated by not wearing masks under human rights legislation.
• An employee sought and failed to obtain exemption, and was put on unpaid leave as a result.
• The employee claimed this constituted a constructive dimissal with further damages regarding notice of termiantion.

3 Relevant Issues

• The key issues raised were whether the implementation of the mask policy, putting the employee on leave, and the plaintiff's refusal to comply with the policy amounted to a repudiation of terms and whether the aforementioned repudiation amounts to a resignation.

Decision

• The court rejected the claim, stating there was no actionable discrimination and no need to accomodate as the employee failed to provide evidence of a disability.
• In addition, the plaintiff's role was only co-extensive with municipalities and public health authorities due to the pandemic, being put on unpaid leave was not a breach and Loblaw did not have duty to pay due to the voluntary termination and consequence

Alberta Supports Employer

• Wagner J (as he then was), stated in Potter that constructive dismissal claims can be turned into resignation by the employee.
• In this specific Loblaw case the Mr. Benke found employment elsewhere and did not seek reinstatement, there can be no doubt that he has resigned even if he did not explicitly communicate that to Loblaw.
• By not complying the employer treats such refusal of policy to be a repudiation of workplace policy which would in turn translate to resignation.

Dismissing A Resigning Employee

• If a resigning employee has access to sensitive information, the employer may not want them to work during the notice period.
• However, the employer should not pre-empt the employee’s resignation since it can effectively be a wrongful dismissal.
• While the damages will be limited to the notice period, the employer may be held liable for full wrongful dismissal damages if the employee has no other position to go to.

58 of the Alberta Employment Standards Code

• An Alberta employee who has worked more than three months, is required to provide a weeks or two weeks notice of resignation.
• In the scenario were they are terminated before the notice period is up by the employees request, the employer must match the wages equivalent of the regular schedule pay.

Employee Resignation

• If the employee gave more notice than expected, then an employer has to pay less compensation but they are still able to advance the end without full compensation.
• In British Columbia there are no expectations of notice for the employee.
• To avoid potential litigation, the employers should accept resignation, pay them and say there is no requirement for the person to attend work.

Employee Rights

• As an obligation to provide reasonable notice of termination or pay, the employee possesses the reciprocal obligation to do the same.
• This does not apply in BC but is present in Alberta’s Employment standard code in section 58.
• To reduce the lack of notice an employer has a responsibility to locate another replacement to limit losses.

What is Needed?

• To minimize uncertainty employers may set up a policy for proper notice or documentation prior to the point of resignation.
• In most cases it’s two weeks that is considered required, and for employees acting in Alberta the employer must pay ten days after the termination notice expired.
• Even if there’s a breach of contract an employer cannot force an employee to work against their wanting.

Exit Interview Purposes

• Exit interviews allow an employer valuable information to improve their employee situation or know why there has been so much turnover.
• By gathering competitive intelligence an employer can take action on improving.
• DiFlorio (2012) states that neglecting exit interviews could lead to more risks.
• During exit the supervisor can ensure that company property is exchanged or that obligations are understood.

Retirement Ages

• Despite pension plans being rooted at 65 for retirement, all provinces and territories have banned the age ceiling relating to human rights protection.
• Effective December 2012, the Government of Canada repealed mandatory retirement for employees governed by federal human rights and employment legislation.
• If a plan is made that contravenes based on age the plan has to prove bone fide.
• British Columbia v BCGSEU (Meiorin) set precedent for which the laws are laid out across Canada.

Employee Retirement

• Making choices on retirement leads to many items arising for review, namely age discrimination and potential accomodation for disabilities with older employees.
• Performance needs to match what they are being paid, and the reasoning behind termination should be clear in order to avoid any legal action.
• Typically both the common law and the human rights tribunals require full and clear notice.
• While there are some retirement plans that provide benefits above 65, the BC Human Rights Code can challenge discrimination based on any benefit plans that are denied.

Introduction and Key Concepts

• For non-unionized employees, the individual contract of employment dictates the employer–employee relationship.
• Whether written or oral, this contract maintains the primary employment terms and conditions.
• Terms include those expressly agreed to and those implied by common law.
• Common law principles of contract, necessitate consideration to create a binding obligation and affects the employment relationship.
• Common law rules relating to constructive dismissal must be observed, including attempting to change an employee’s duties or discipline.

Employer Policy Manuals

• Most organizations should have a policy manual, with employment policies and procedures.
• Many large employers utilize a user-friendly version known as an employee handbook which reference information.
• Employee handbooks answer “when,” “where,” and “how” questions, while policy manuals explain “why” things are done.
• Handbooks should be detailed to cover basic day-to-day rights, responsibilities, with direction to policies.
• A well-drafted policy manuals serves legal and communicative function through centralized information.
• Policy manuals will often include items such as dress codes, probationary periods, disciplinary procedures, and harassment policy.
• Policy manuals allow for convenient means for minor changes to company rules if employees receive notification.
• Significant changes that affect fundamental terms, such as Changing Employment Terms and Conditions, require additional steps.
• Employer policy’s manual ensures consistency in employees treatment guided by management.

Effectively Implementing Policy Manuals

• Treating employees consistently is a fundamental part of being a fair employer that reduces disputes.
• Policy manuals do not automatically bind the employee, but certain steps maximize the benefits:
  • The employment contract or letter of hire specifically incorporates the manual which are incorporated into employment.
  • Provide employees with a copy of the manual before they begin work and ensure it is drafted clearly.
  • Apply the manual’s policies consistently, ensure all employees have current copies, and notify of any policy changes.
  • Have employees indicate in writing that they have reviewed the manual and changes on an annual basis.
  • The form must clearly state employees are responsible for asking HR or a supervisor if they do not understand the manual.
  • Ensure employees know consequences for not adhering and consequences are fair.
  • Include a statement advising the organization retains change discretion, and update the manual periodically by informing employees
• Daley v Depco International Inc demonstrates implementing an employment policy manual effectively where the progressive discipline policy was justified with a summary dismissal.
• Distributing an employee handbook, obtaining sign-offs, and stating failure to abide may result in disciplinary action played a part in the Courts finding.
• A breach of company rule (or policy) requires well-communicated, consistent enforcement, reasonableness, serious rule implications, and employee advice of potential termination.

Changing Employment Terms and Conditions

• Introducing contract changes (oral or written) during employment raises issues.
• For minor changes (modifying reimbursement procedures), announce the change and distribute amendments.
• Significant change introductions present legal problems potentially amounting to constructive dismissal of damages for wrongful dismissal.
• Consideration must be provided for changes to the employee may argue they are not bound by it.

Understanding Constructive Dismissal

• Constructive dismissal occurs when an employer unilaterally changes the employment contract against the employee.
• Employees can accept the change, negotiate changes, reject changes as constructive dismissal, or quit and sue in lieu for proper notice.
• Farber v Royal Trust Company is seminal as occurring when a substantial change is made to an essential term.
• Examples include reduction in vacation time, demotion, preventing fulfillment of employment, harassment, or being given the choice of accepting or being fired (Minkin Employment Lawyers, 2012).
• In Potter v New Brunswick Legal Aid Services Commission, ambiguities can arise through a two-branch test.
• Substantial employment contract breach is tested in the first branch.
• Second branch tests for constructive dismissal has no clear objective employment contract breach.
• First branch consists of whether a substantial essential breach has occurred through unilateral expression, not through consent.
  • This will determine if a reasonable person viewed it as substantially altering.
• A 25% pay reduction clearly amounts to a repudiation of existing terms considered constructive dismissal.
• Modest changes such as the commission package varies depending on the market conditions.
• The court will determine fundamental versus a miner administrative change.
• Second branch of constructive dismal looks at absence of breach depending if non-obvious conduct would lead a reasonable person to believe the employer is no longer bound.
  • Cumulative employer acts will lead to dismissal such as demonstrated in Lavinkas v Jacques Whitford and Associates Ltd.
    • marginalization, not being values, perceiving as a joke causes an employee to persevere in their employment.

British Columbia Cases

• de Vink v Schaffer Residences Inc, details how an employer had created an intolerable hostile workplace.
  - 65 year old woman claimed the employer treated her for two years, claimed for a raise that was bullied, harassed and isolated, an “oppressive” atmosphere.
  - The claim failed due to the plaintiff be the cause and did nothing to make it intolerable, not entitled when she did to "of her own volition.”
  

  • Fredrickson v Newtech Dental Laboratory Inc shows evidence will make the workplace intolerable. -Newtech dismissed Fredrickson on return from Medical Leave.
    • However, lawyer sent a letter and then she offered to return to work was would make the workplace intolerable, two secret recording were include

Potter Branches

- the trial judge ruled she must accept re-employment to mitigate expected from boss, return to intolerable, breaching confidences.

• The Court reaffirmed the Potter two-branch in Matthews v Ocean Nutrition Canada Ltd clarified remedies for constructive dismissal providing proper notice.
  • employee sues claiming damages breached to be calculating the employee to but for the dismissal employer design, not the termination
• Benke v Loblaw Companies Limited discusses safety masking, putting to leave due to COVID impact and employees not presenting and medical as required in the workplace.

Making Changes to the Employment Contract Legally

• Changes to Employment can be met by:
  • 1. Variation clauses, stating express changes.
  • 2. Seeking employee consent minimizing constructive dismissal. -3) Providing "fresh considerations" from the rights of the signing bonus, with vacation.
• totan rule, giving employees not existing to change.
  • The Wronko decision stands for more than providing advance notice of a fundamental change where the employer is explicit and telling the terms, and the new contract to the end .
• Kafka v Allstate, states what is that and if if and then
• Employ should no to assist employees in performing.

Kosteckyj v Paramount Resources Ltd Case

• The Court found for for just weeks.
  • The The Court of of that the employee to change

Key Points of Chapter Study

• In short, significant to the contract is made with.

Attendance Management

• There are two types; culpable (without good reason), and innocent (medical/legitimate)
• Disciplinary measures relate to culpable absenteeism and a non disciplinary basis for contract frustrations relate to innocent absences
• AMP or the management program ensures good attendance
• Aims to identify employee attendence levels
• This should in turn not automatically affect the over all attendences.