38 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m
lEgal rEport/labouR & employmenT
The intricacies of
constructive dismissal
Employer should have offered new position
a second time to long-term employee
by jennifer brown
i
nternal "restructuring" is often a
means organizations use to adjust
to market forces these days, but it
can come with its own set of risks.
Whether it's a pay cut, change in
title, or demotion of duties, employees
are watching for signals indicating they
may have been constructively dismissed.
"Employers who want to make changes
but don't want to pay out big severance
[packages] are going this route and hop-
ing the person won't stay," says Hen-
drik Nieuwland, partner with Shields
O'Donnell MacKillop LLP.
Constructive dismissal occurs when
an employer makes a unilateral and
fundamental change to a condition of
an employment contract without pro-
viding reasonable notice.
Earlier this spring, a case involv-
ing a long-term employee and senior
executive of a transportation company
brought the question of constructive dis-
missal to light again. In Farwell v. Citair
Inc. (General Coach Canada) the com-
pany learned the hard way the delicate
dance required when making changes
to an employee's role. It decided its
58-year-old vice president of operations
with 38 years at the company, lacked the
alexi
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