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Wrongful Dismissal




Actually You Weren’t Fired! Court Rules Long-Term Employee Should Have Accepted New Role

Practice Areas: Wrongful Dismissal

A recent decision of the Ontario Superior Court of Justice has reinforced an employer’s ability to re-organize work flow and adjust employee responsibilities. One of the main roadblocks that an employer will face any time an employee’s job title or responsibilities are changed is a claim of constructive dismissal. Constructive dismissal occurs when an employer has made changes to fundamental aspects of an employee’s working conditions (e.g. wage, title, work location, hours of work, etc.) and these changes amount to a repudiation of the employment contract. Unilateral and fundamental changes to the employment relationship may result in an employee claiming they have been constructively dismissed and are owed statutory notice or common law reasonable notice.

In the decision of Bolibruck v. Niagara Health System, 2015 ONSC 1595 the Plaintiff claimed she had been constructively dismissed after her role as a Health Program Director (“HPD”) was adjusted to include some non-clinical work and a new reporting structure. In 2010 the plaintiff, after being in a HPD role at the Niagara Falls hospital, was moved to the new St. Catharine's General Hospital. Despite maintaining the HPD title, the plaintiff was given new and high profile work relating to transition work needed for the new hospital. Ms. Bolibruck was ultimately unhappy with the changes to her role and viewed the modification as a demotion. Furthermore, she claimed that the HR supervisor had acted in a verbally abusive manner towards her and she was moved to a smaller office.

Justice Nightingale found that the changes did not support a claim of constructive dismissal. It was made clear to the plaintiff that she would maintain her salary, benefits, and title as a Director. The evidence revealed that the plaintiff was specifically told she could remain in her previous office and chose not to. Further, her new reporting structure now included direct contact with the Hospital’s Chief Planning Officer, viewed as a status enhancement by Nightingale J. The role of transitioning services to the new hospital was of critical importance and it was clear that the hospital held the plaintiff in high regard.

Justice Nightingale concluded that the role changes fit squarely within an employer’s implied right to reasonably reassign an employee to other duties. There was clear evidence that all HPD’s had varying duties throughout their years of service, and the plaintiff’s employment contract did not contain an express or implied term that her duties would remain the same at all times. In the words of Nightingale – “The employer is allowed a certain degree of latitude to reorganize and modify job descriptions and with respect to upward and lateral changes in the responsibilities of its employees provided that the changes are not significant enough to constitute a constructive dismissal”.

Despite finding that no constructive dismissal occurred, Nightingale J. conducted an assessment of the potential damages if the claim was successful. This analysis led to a finding that the plaintiff, if successful, had failed to mitigate her damages by accepting the new position and would have been owed nothing. This is another positive finding for employers, illustrating that in some cases an employee is expected to accept a new position in order to limit/eliminate their damages. The question is whether a reasonable person would accept such an opportunity and requires examining whether salary and working conditions are similar, the work is demeaning, and if the working relationship has deteriorated. In this case, claims that the working relationship with the plaintiff’s supervisor had become hostile was “ill-founded”.

This case is positive for employers on a number of fronts and reinforces an employer’s right to make reasonable adjustments to employee’s roles and responsibilities as the employment relationship progresses. Click here for a list of our team members who can assist when considering workforce reorganization or if you’re faced with a constructive dismissal claim.



Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.



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