Constructive Dismissal

Responding to the New Terms

Evidence of Refusal of the New Terms

One issue is often whether the conduct of the employee has demonstrated that they have refused the alleged amended terms, that is they have repudiated the contract. The word “repudiation” in this context is an assertion that the relationship has been constructively dismissed. If so, then the inquiry will follow as to whether the conduct shows a constructive dismissal, failing which the claim will fail. There may also follow a claim from the employer for the failure to provide fair notice in this context.

A case showing the search for evidence of repudiation was decided in 2015 by the Nunavut Court of Appeal. 1 The issue arose due to a letter written by the plaintiff’s counsel. The letter included these assertions: 2

  1. The employer had made significant changes to the plaintiff’s responsibilities which have diminished her overall authority;
  2. Legal counsel has advised that she is in a position to claim constructive dismissal;
  3. As the employer has shown it lo longer wishes to employ the plaintiff, she is willing to negotiate a termination package;
  4. The plaintiff is willing to remain employed during reasonable negotiations which should not seen as accepting or condoning the changes.

The test for conduct which may be seen as repudiation is a difficult one. There must be shown a “clear and unequivocal intention to terminate the employment relationship. 3

The letter in the Nunavut case was also copied to Board members, the relevant Minister, conduct which was seen as an attempt to politicize the matter in a favourable manner. Given that the plaintiff worked for the President and the Board, a position which required a high level of trust, the trial judge found it would have been impossible for her to return to work. Repudiation was found. The plaintiff failed to show a constructive dismissal. Her case was dismissed.