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By Ralph N. Nero and Keri L. Bennett
When is a layoff not a layoff? When it is a constructive dismissal, according to an Ontario judge. McLean v. The Rawyal Limited Partnership reaffirms the principle that unless incorporated as an express or implied term of the employment contract, a layoff may be treated as constructive dismissal–meaning the employee can sue for pay in lieu of reasonable notice.
Canadian employers that fear large jury awards in wrongful dismissal cases can breathe a little easier in the wake of a recent Alberta Court of Appeal decision. In Elgert v. Home Hardware Stores Ltd., the court of appeal said a $500,000 jury award for aggravated and punitive damages in a wrongful dismissal case was too high, reducing it to $75,000.
Background
In the spring of 2002 the Home Hardware Distribution Centre in Wetaskawin, Alberta, fired Daniel Elgert without notice. He had worked for Home Hardware 17 years and was a supervisor at the distribution center when two female coworkers made sexual harassment complaints against him. Following the complaints, Home Hardware immediately suspended Elgert and engaged in what the court of appeal described as a perfunctory investigation that presumed his guilt.
Does an employer have a broad obligation to protect employees from mental distress that may be caused in the workplace? Ontario’s Court of Appeal recently answered this question in Piresferreira v. Ayotte and Bell Mobility Inc. with a resounding “no.” The decision reverses, in part, an award made back in 2008 – where an employee was awarded over half a million dollars in damages after her boss pushed her on the shoulder and verbally abused her during a workplace dispute.
Background
Piresferreira was a 60-something account manager who had worked with Bell Mobility for about 10 years. She reported to Richard Ayotte, a person known to be a “critical, demanding, loud and aggressive manager.” He was known to pound his fists on the desk, yell, and swear at his employees, and act in other intimidating ways toward employees. Piresferreira, on the other hand, was known to be a sensitive employee who didn’t take well to criticism.
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