Constructive
Dismissal
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. [2015] 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
process.
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
Agreement.”
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. [1992] 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.
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