Not Constructive Dismissal, But Still Wrongful

Termination for Cause Woman Dismissed

Summary of Case

In Dechene v. Dr. Khurrum Ashraf Dentistry Professional Corp. the Employee, Ms. Jennifer Dechene, worked for the Employer, Dr. Khurrum Achraf Dentistry Profession Corp., as a dental hygienist for six years in accordance with a verbal contract which required her to work 32 hours per week. In her sixth year of employment, the Employee was provided with a written Employment Agreement which permitted the Employer to require the Employee to work 48 hours per week. The following day the Employee inquired about the terms of the proposed Employment Agreement. In response, the Employer provided the Employee with a termination letter offering five weeks working notice. The Employee became upset upon receipt of the termination letter and left the workplace. The next day the Employee informed the Employer that she would complete the five weeks of working notice, however the Employer told her that it was too late as a replacement had already been hired. As a result, the Employee initiated legal proceedings against the Employer in Small Claims Court seeking damages for wrongful dismissal.

After hearing evidence from both parties, Deputy Judge J. Sebastian Winny found that the Employee was constructively dismissed when she was provided with the written Employment Agreement which unilaterally increased her hours of work. Additionally, the Deputy Judge found that, in the event that the Employee was not constructively dismissed, she was wrongfully terminated by the Employer when she was provided with the termination letter offering only five weeks of working notice. The Deputy Judge awarded the Employee six months notice. Further, the Deputy Judge found that there should not be any deduction from the award of notice for the Employee’s initial refusal to work the five week notice period. Although the Employee initially left the workplace upon receipt of the termination letter, the Deputy Judge determined that this did not exemplify an intention to repudiate the employment relationship.

The Employer appealed the Deputy Judge’s decision to the Ontario Superior Court of Juctice – Divisional Court, where the decision was upheld. In reaching this decision, the Divisional Court found that since the unilateral change to the Employee’s employment, being the substantial increase to her hours of work, had not yet been imposed on her prior to the delivery of the termination letter, the Employee was not constructively dismissed. Nevertheless, the Divisional Court found that the delivery of the termination letter effectively severed the employment relationship entitling the Employee to the six months notice awarded by the Deputy Judge. Further, given that the Employer did not keep the Employee’s position open during the five week notice period, but rather hired someone the very next day after terminating her, the Divisional Court held that the Employer was unable to argue that the six months notice period should be reduced by the five weeks of working notice offered in the termination letter.

Impact of Decision on Employees

Although there are many important lessons for employees in the above decision, one point to focus on is the importance of employees governing themselves in a reasonable manner following their termination. In the event that working notice is offered upon termination, an employee must ensure that they work through that period, or otherwise risk this amount being deducted from any award of damages for wrongful dismissal (see our blog entitled Court Awards Notice Despite Employee’s Resignation During Working Notice Period). However, as demonstrated in the above decision, such a deduction should not be made when an employer takes steps to prevent an employee from being able to fulfill the working notice period.

Impact of Decision on Employers

The above decision demonstrates the importance for employers to ensure that they properly provide adequate notice of any changes to an employee’s employment in order to avoid claims of constructive dismissal, provide adequate notice upon termination, and ensure that an employee is provided with a reasonable opportunity to fulfill any offer of working notice. Therefore, employers should always consult with Employment Law lawyers when they are considering terminating an employee to obtain legal advice with respect to these issues.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or employee, we can help. Contact us to see how.

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