20. The Supreme Court of Canada recently articulated a two step test in
determining whether an employer’s acts constitute constructive dismissal.
Firstly, the court must identify an express or implied conract term that has
been breached. Secondly, the court must determine whether the breach was
sufficiently serious to constitute constructive dismissal. The court noted that
an employer’s conduct will also constitute constructive dismissal if it more
generally shows that the employer intended not to be bound by the contract.
Potter v. Aide Juridique du N.B.  1 S.C.R. 500
21. There does not exist any sound policy reason for the doctrine of
constructive dismissal to be denied to public sector employees covered by
a collective agreement who find themselves in the circumstances which the
Applicant found himself in this case. To be clear those circumstances involve
the following salient facts and circumstances:
1. Being prohibited from the workplace;
2. Denied pay; and
3. The bargaining agent refusing to represent him.
22. IT IS SUBMITTED THAT what distinguishes a common law
employment relationship from one in the collective bargaining regime is the
existence of a collective agreement, a bargaining agent whose job it is to
represent and advocate for its members through the grievance administration
23. Where an employer changes a union members position, salary,
reporting etc. that employee may dispute employer action by filing a
grievance. The worker at common law does not have the luxury of filing a
grievance and can consider the employer’s act a breach which may entitle
him to claim constructive dismissal.
24. However, where the bargaining agent abandons the worker -
is not that worker in an analogous position to the worker at common law ?
Could it not be said on the facts of this particular case that the employer and
the bargaining agent have made a joint decision not to be bound by the
employment relationship involving the Applicant ?
25. IT IS RESPECTFULLY SUBMITTED THAT the employer’s submission
which is duly noted at paragraph 11 of the Adjudicator’s Reasons both
amplifies and supports a finding that the employer intended not to be bound
by the collective agreement. “The employer also noted that since the
grievor was not represented by his union, he could not raise issues
pertaining to the collective agreement. Therefore, the employer took the
position that the grievance should be dismissed on the ground that I did
not have jurisdiction.” The employer’s own words are even more telling.
They wrote in their initial written submission dated May 1st, 2014:
“It is noteworthy that the Applicant's bargaining agent has advised the
Employer that they do not represent the Grievor on any of these matters.
As such, it is the Employer’s respectful submission that the Board would
lack jurisdiction over the Applicant’s grievance should the Grievor allege
that some of the issues raised in his grievance pertain to the Collective
Adjudicator’s Reasons at para 11
Employer’s submission – Tab 10
Applicant’s Application Record – Tab C
Importance of work and
The manner of termination
Important to individual:
26. In Machtinger v. Hoj Industries Ltd.  986 (SCC) the Supreme
Court of Canada made some significant and powerful observations on the
importance of work to society and the individual employee. The court focused
particular attention on the manner in which employment can be terminated.
The following excerpt from the court’s decision is directly applicable to the
case at hand:
Section 10 of the Interpretation Act, R.S.O. 1990 c 219,
provides that every Act “shall be deemed to be remedial”
and directs that every Act shall “receive such fair, large
and liberal construction and interpretation as will best
ensure the attainment of the object of the Act according to
its true intent, meaning and spirit.” The objective of the
Act is to protect the interests of employees by requiring
employers to comply with certain minimum standards,
including minimum periods of notice of termination.
To quote Conant Co. Ct. J. in Pickup, supra at p.274
“the general intention of this legislation [i.e. the Act] is
the protection of employees, and to that end it institutes
reasonable, fair and uniform minimum standards.”
The harm which the Act seeks to remedy is that
individual employees, and in particular non-unionized
employees, are often in an unequal bargaining
position in relation to their employers. As stated by
Swinton, supra at p.363:
…the terms of the employment contract rarely result
from an exercise of free bargaining power in the way
that the paradigm commercial exchange between two
traders does. Individual employees on the whole lack
both the bargaining power and the information necessary
to achieve more favorable contract provisions than those
offered by the employer, particularly with regard to tenure.
27. IT IS SUBMITTED THAT the words of the Supreme Court of Canada
above provide context and support for the Applicant’s position that there is no
valid policy reason to exclude employees in his circumstances the benefit of
the doctrine of constructive dismissal. A proper reading of the legislation in
question makes It clear that the objective of the legislation is to extend rights
to individual employees notwithstanding the fact that they are covered by
a collective agreement. An interpretation of that legislation which permits
the employer and bargaining agent to effectively dismiss an employee at
will without any legal redress is not what the legislature had in mind.
Constructive dismissal must be available to the Applicant given the specific
circumstances in which he found himself.