Constructive Dismissal

Relocation as CD

A Contracted Right

The preliminary question will be whether the parties have agreed that relocation to alternative cities are part of the employment bargain. Assuming so, there is no need to consider the implied term arguments which follow. Such was the case in a B.C. Court of Appeal case in a 1985 decision: 1

Mr. Reber accepted employment at a relatively low level of the bank's management structure, knowing that he had the opportunity to rise to an executive position, and from lower executive positions to higher, and that he was assured of no particular position; the employer had the right to impose changes which would involve transfers to different kinds of duties in different cities and even in different countries.

I do not think that this was a matter of implied terms of the contract of employment. These were matters which were made clear at the outset and were well understood by both sides.

A similar conclusion was reached in a second B.C. case in which the plaintiff agreed that the company’s relocation manual outlining moving expenses was a term of the plaintiff’s contract. The court also found that it was an implied term that geographic transfers would be the order of the day. 2

Implied Term

Review the Context of the Business

The court will examine the terms of the company’s business to assess whether it is reasonable to imply such a term into the employment relationship. This may include an assessment of the size of the business, the existence of other national or international offices, the visible practice of the company or the industry in which it is situate.

A good example of this analysis is the 1984 decision of the Saskatchewan Court of Appeal. It agreed with this statement from the trial judge that the context of the business allowed for such an implied term: 3

The trial judge found that it was an implied term of Page's oral contract of employment with the Employer that Page would accept all reasonable regional transfers not involving a demotion or undue hardship. The trial judge reviewed all the circumstances surrounding Page's hiring; his knowledge that the company had branch offices in other cities in Canada; his knowledge that the people were promoted and transferred from time to time; his knowledge that if he was to be promoted it might be necessary for him to accept transfers; the fact that he had accepted a transfer to Saskatoon to take a middle management job; and the fact that the Employer had a policy respecting reimbursement of expenses incurred by employees on a transfer from one city to another. The trial judge concluded that relocation of management personnel is necessary within a large organization with a number of branches in order for it to operate efficiently. In making that finding he took into account the Employer's size, geographic area, number of employees and number of branches. There was ample evidence on which the trial judge could have found as a fact, having regard to all of the circumstances noted, that both parties considered that the contract of employment contained such an implied term.

Similarly, in 1988, the court, using the same considerations, implied the right to relocate in the context of a large engineering company upon the completion of a large project. 4

The Saskatchewan Q.B. in its 1989 also agreed that the employer had the right to effect a job relocation, given the nature of the business. The defendant was a Schedule A bank. The court found that “the plaintiff admits he knew and expected to be transferred from time to time and that it was part of being an employee of the defendant.” 5