Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S e p t e m b e r 2 0 1 4 41 Increasingly, employees are more sensitized to their rights and potential liabilities and are more likely to question actions taken by an employer than they used to. By the same token, Gorsky says most employers have become more aware that if they are doing something that constitutes a significant altera- tion to the employment relationship they can't automatically assume they can do it. Ever since Evans v. Teamsters Union Local No. 31 in 2008, there's been "a fairly steady diet of people thinking about how to make changes and avoid the constructive dismissal claims," says Craig Neuman, of Neuman Thompson in Edmonton. "If they can't convince a court the new job they are offering is close enough to the old job to circumvent liability entirely, at least they are thinking, 'How can we keep it down to a dull roar?' We are running into it with reasonable regularity." Evans was a wrongful dismissal case, not a constructive dismissal case, but the Supreme Court of Canada held the mitigation principle applied to both express and constructive dismissals. Donald Norman Evans worked for the Teamsters and experienced a job change that led to a wrongful dismissal claim. They offered to have him come back and work for a period of time but he declined. The courts said he should have mitigated his loss. "We have spent quite a bit of time caution- ing clients that if they want to use the approach then they have to be sensitive to the notion surrounding respectful communi- cation with people and keeping channels open," says Neuman. "What surprised me [in Farwell] was that the Court of Appeal suggested there is this formal requirement that if you propose the reassignment and the employee rejects it based on it being a constructive dismissal that there's this technical obligation to offer it again as mitigation — that part I found head scratching," says Neuman. "In light of this decision it reinforces the point that you need to keep that ball in the air — if the employee balks at an offer of permanent reassignment that they take advantage of the mitigation piece, but I'm not sure they needed to re-table it — it seemed pedantic." With organizations continuing to experience limited growth, companies are making decisions to stay lean and that can increase constructive dismissal claims. Nieuwland says if an employee declines the offer of a new role they run the risk of having no damages. "The court will say yes, they were constructively dismissed but the environment being offered to you to mitigate wasn't embarrassing or humiliating and they were keeping you whole in terms of money and you should have taken the job to make sure you have no damages," he says. His advice to employers is to always do what's right for the business. "If keeping the person is best for the business, then you offer the alternative position, but if doing that is not best for the business, I'm hesitant to recommend doing so just for positioning purposes in a constructive dismissal claim." Over time, Nieuwland says it is likely there will be a con- tinued level of constructive dismissal claims, perhaps driven in the near term by the aging workforce. "As workers get older and because of their age they may have a diminishment of skill set, and so companies look to realign these people and make changes to jobs. So they run the risk of constructive dismissal claims with an age discrimination claim tacked on." "There is so much involved contextually — consider the degree to which you're asking for a change to be made in their job and you can make a case that it's reasonable for the employee to accept the change to begin with in terms of the constructive dismissal analysis, or, alternatively to remain in the workplace as part of the employee's mitigation obligation." thoMAS GoRSKy, Sherrard Kuzz LLP www.kuretzkyvassos.com Tel: (416) 865-0504 BARRY KURETZKY AND GEORGE VASSOS LEXPERT ® RANKED SINCE 1997 AND SELECTED TO BE IN "BEST LAWYERS IN CANADA" ntitled-1 1 13-12-04 9:49 AM

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