Evans Revisited: The Potential for Mischief Where Constructive Dismissal Meets the Duty to Mitigate Damages with the Dismissing Employer

by E. Wayne Benedict
Contact

In early 2008 the Supreme Court of Canada released its judgment in Evans SCC, a case of wrongful dismissal. In the 6-1 decision, the majority held that Mr. Evans had failed to mitigate his damages by rejecting an offer of re-employment made by the dismissing employer shortly after it had terminated the employment contract. As a result, the award of the trial judge for damages in lieu of 22-months reasonable notice at common law was set aside in its entirety. The thesis of this paper is that the majority reasons in Evans opens the door for mischief by employers who may unilaterally make fundamental or substantial changes to an employee's contract of employment with little risk of being liable to pay damages in lieu of reasonable notice so long as the circumstances surrounding the termination of the employment contract are framed so as to avoid the appearance of serious damage to the employer-employee relationship.

A constructive dismissal occurs “where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment—a change that violates the contract's terms—the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice.” Part II of this paper discusses constructive dismissal. Part III of this paper discusses the circumstances when a constructively dismissed employee has a duty to mitigate his or her damages by accepting re-employment with his or her former employer on a temporary basis according to the majority in Evans.

Part IV of this paper discusses the potential for mischief by employers taking advantage of the interplay between the principle of constructive dismissal and the employee’s duty to mitigate damages as elucidated in Evans. Part V sets out post-Evans jurisprudence in an attempt to glean whether Courts and tribunals will embrace Evans or limit its impact. Part VI concludes the paper by pointing out that the majority ratio in Evans can result in the “bizarre consequence of transforming a wrongful dismissal attracting a substantial notice period to a lawful one attracting none.” Evans arguably creates a legal oxymoron, in that situations where (1) “an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment” (a constructive dismissal), and (2) “[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious” are mutually exclusive. Perhaps the law ought not to require (on pain of forfeiting pay in lieu of reasonable notice for the employer’s fundamental breach of the employment contract) an employee to return to work for the dismissing employer at all considering that it is the rare employee who does not subjectively experience embarrassment, humiliation and loss of dignity when his or her employer unilaterally and fundamentally alters the employment contract (a unique subset of contracts marked by an inherent imbalance of bargaining power) disturbing the central role that work plays in the individual’s sense of identity and dignity at the time of dismissal when the employee is most vulnerable and hence, most in need of protection from the Courts.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© E. Wayne Benedict | Attorney Advertising

Written by:

E. Wayne Benedict
Contact
more
less

E. Wayne Benedict on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!