{"id":10312,"date":"2024-01-10T15:09:21","date_gmt":"2024-01-10T20:09:21","guid":{"rendered":"https:\/\/360mediations.com\/en\/?p=10312"},"modified":"2024-01-10T15:09:25","modified_gmt":"2024-01-10T20:09:25","slug":"employee-whose-duties-were-diminished-after-announcing-resignation-was-not-constructively-dismissed","status":"publish","type":"post","link":"https:\/\/mail.360mediations.com\/en\/employee-whose-duties-were-diminished-after-announcing-resignation-was-not-constructively-dismissed\/","title":{"rendered":"Employee Whose Duties Were Diminished After Announcing Resignation Was Not Constructively Dismissed"},"content":{"rendered":"\n

Except in the clearest of situations, employees generally have a very difficult decision to make when asserting that they have been constructively dismissed from their employment.\u00a0 This is largely because all the onus rests on them to prove that they were constructively dismissed, which effectively means that they must prove that they didn\u2019t simply resign or quit for reasons that had little, if anything, to do with misconduct on the part of their employer.<\/p>\n

This recently released decision helps to illustrate the conundrum faced by employees who feel mistreated at work, and chose to take the position that they have been constructively dismissed.\u00a0 Here the employee was employed for a little over 7 years in a high ranking position (Vice President), and he simply got to the point where he wanted to leave on his own accord (health reasons, etc), and he announced to his company that his last day of work was going to be the end of the following year: in effect, he gave about 1\u00bd years of notice of his planned resignation.<\/p>\n

Based on this employee\u2019s decision to pack-things-up, or effectively voluntarily resign\/quit, the employer would not be required to pay any termination or severance pay.\u00a0 For someone employed for 7 years, with only a verbal contract (such as the employee in this case), a wrongful or constructive dismissal case could likely yield a reasonable notice period hovering around the 1 year range, especially given that this employee was a high wage earner who occupied the position of Vice-President at the time of his departure.\u00a0<\/p>\n

The employee asserted that after he announced his resignation, he was treated poorly, the company prematurely took his portfolio of work away from him at a time when he still had another six months left on the job, and that all of these actions amounted to constructive dismissal, effectively forcing him out of his job well ahead of his planned resignation later in the year.<\/p>\n

Although we are not privy to what occurred behind the scenes, if I had to guess, this employee was probably getting upset with how he was being treated after he announced his resignation, and eventually spoke to an employment lawyer who attempted to convert the \u201cresignation\u201d into a \u201cconstructive dismissal\u201d scenario, because of the significant monetary difference between the two scenarios: zero for a resignation vs. the prospect of a year of pay if constructively dismissed.\u00a0 So the seed was likely planted that the employee would leave early, arguing that the employer\u2019s conduct following his resignation notice was tantamount to constructive dismissal entitling him to a years worth of severance pay (instead of zero).<\/p>\n

Unfortunately for the employee, the judge did not accept this theory.\u00a0 The judge considered the shifting of the employee\u2019s portfolio of work to other employees was a necessary part of the transition required when the employee gave notice of his resignation.\u00a0 The fact that the transition may have been swifter than the employee would have liked was not material \u2013 the employer had the right to ensure the work was shifted, and that there was overlapping of time to ensure the transition worked smoothly.\u00a0 The judge was also not persuaded that the company started to mistreat and\/or abuse the employee to the point that \u201cwould have made his continued employment intolerable.\u201d\u00a0 As concluded by the court, \u201ca reasonable person in \u2026 {the employee\u2019s) \u2026. position would not have felt that the essential terms of his employment were substantially changed.\u201d\u00a0 In the end, the employee was held to zero recovery for alleged constructive dismissal.<\/p>\n

Generally, it is very difficult to take-back a \u201cresignation.\u201d\u00a0 Most often resignations are quick (ie: sometimes instantaneous, but often giving no more than a 2 -4 weeks notice period) and as such, the argument that the employee was mistreated following the resignation is not typically available. \u00a0As such, this employee, because of his long resignation notice period, had an argument that many who resign do not: mistreatment during the resignation period.\u00a0 However, even with this additional argument, the employee still lost.\u00a0<\/p>\n

Setting aside a resignation is difficult.\u00a0 Indeed, the few times the court has set aside an employee\u2019s resignation has typically arisen when the court is satisfied that the resignation was done in the heat-of-the-moment, and the employee was quick to apologize and\/or retract the resignation (and well before the employer acted on the resignation \u2013 ie: didn\u2019t hire someone else, etc).\u00a0 That argument, of course, would not have been available to the employee in this case because his resignation after contemplating this move for a long time: there was nothing rash or impulsive about it.<\/p>\n

The employee was none-the-less fortunate, however, because even though he was denied severance pay for constructive dismissal, he was able to successfully argue that his employer wrongfully withheld payments owing under his verbal employment contract, including:<\/p>\n

    \n
  1. \n
      \n
    1. Unpaid and deferred bonuses totalling $525,000;<\/li>\n
    2. Wrongfully denied vested stock options totalling $1,251,945.58; and<\/li>\n
    3. Twenty-two (22) weeks of unused vacation totalling $93,076.92.<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

      So in the end, the employee\u2019s fight was one that was worth pursuing, not for wrongful or constructive dismissal, but for breach of his employment contract.\u00a0 Practically speaking, most employees do not have millions of dollars of denied pay or benefits to lobby for, which makes a case solely for constructive dismissal severance pay alone very high risk when the employer’s conduct is not egregiously off-side.\u00a0 But this being said, the outcomes for constructive dismissal cases are largely unpredictable, so it behoves both parties to negotiate the risks to a resolution, especially when legal costs to take the matter to trial will far outstrip what is financially at stake.\u00a0 This recent case is more of an anomaly where there was a lot of money at stake to perhaps absorb the legal costs, however, even high financial claims can benefit from a well negotiated settlement, especially because it buys closure and peace of mind.\u00a0 The battle between these two parties has been rather epic, involving many court appearances, and it still may not be over if any of the parties should decide to appeal this decision.<\/p>\n

      Boyer v. Callidus<\/em>, 2024 CanLII 96 (ON SC)<\/p>\n

      https:\/\/www.canlii.org\/en\/on\/onsc\/doc\/2024\/2024canlii96\/2024canlii96.html<\/a><\/p>\n

      \u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

      Except in the clearest of situations, employees generally have a very difficult decision to make when asserting that they have been constructively dismissed from their employment.\u00a0 This is largely because all the onus rests on them to prove that they were constructively dismissed, which effectively means that they must prove that they didn\u2019t simply resign… Continue reading Employee Whose Duties Were Diminished After Announcing Resignation Was Not Constructively Dismissed<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[150,17,133],"tags":[],"class_list":["post-10312","post","type-post","status-publish","format-standard","hentry","category-contract-law","category-damages","category-employment","entry"],"yoast_head":"\nEmployee Whose Duties Were Diminished After Announcing Resignation Was Not Constructively Dismissed - 360Mediations<\/title>\n<meta name=\"description\" content=\"Removing work from an employee and diminishing their roles after their announced resignation is not tantamount to constructive dismissal.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.360mediations.com\/en\/employee-whose-duties-were-diminished-after-announcing-resignation-was-not-constructively-dismissed\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Employee Whose Duties Were Diminished After Announcing Resignation Was Not Constructively Dismissed - 360Mediations\" \/>\n<meta property=\"og:description\" content=\"Removing work from an employee and diminishing their roles after their announced resignation is not tantamount to constructive dismissal.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.360mediations.com\/en\/employee-whose-duties-were-diminished-after-announcing-resignation-was-not-constructively-dismissed\/\" \/>\n<meta property=\"og:site_name\" content=\"360Mediations\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/360Mediations-120028596572318\" \/>\n<meta property=\"article:author\" content=\"https:\/\/www.facebook.com\/360Mediations-120028596572318\" \/>\n<meta property=\"article:published_time\" content=\"2024-01-10T20:09:21+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2024-01-10T20:09:25+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/mail.360mediations.com\/en\/wp-content\/uploads\/2022\/01\/COURT-DECISIONS-360MEDIATIONS-1x1-1.png?fit=406%2C322&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"406\" \/>\n\t<meta property=\"og:image:height\" content=\"322\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"author\" content=\"David M. 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