Better if employer has clear internet use policies if


Better if employer has clear internet-use policies.

If employee has already been warned.

Intoxication at Work

How has it affected employee's ability to perform.

Look at employee’s work record.

Has employee been previously warned?

Alcoholism and drug addiction are disabilities under human rights statues.

Employer must accommodate employee’s addiction to the point of “undue hardship”.
WEEKK 4

CHAPTER 15 : CONSTRUCTIVE DISMISSAL
I. Legal Concept of “Constructive Dismissal”

Constructive dismissal occurs when:

An employer commits a fundamental breach of contract

behaves in an intolerable manner

An employee responds by treating the contract as having been terminated by employer, and so deserves
notice

Based on doctrine of repudiation of contract.

Constructive dismissal occurs when the employee accepts an employer’s repudiation of contract by
quitting and suing.

Four questions for courts to consider:

What are the express and implied terms of the contract?

Has the employer breached one of those terms?

Is that breach fundamental, or “repudiatory”?

Did the employee “accept” the repudiation and treat the breach as having terminated the contract?

Employee must “accept” the repudiation within a reasonable time period.

If not, court may rule that he/she condoned the employer’s breach.

Also based on cumulative effect of breaches.

Farber v Royal Trust: whether a reasonable employee would conclude that the employer is altering an
essential term of the contract, given facts as understood at the time the change was proposed
II. Balancing Competing Interests in Constructive Dismissal Law

Employer usually doesn’t have the intention of driving the employee out or terminating the contract.

Employer making changes for legitimate business reasons.

Puts their employer/employee interests against one another.

Courts have restricted rights of employers to make significant changes without consent.

Employers also have significant latitude to make drastic changes to respond to economic challenges.

Judges also influenced by employer’s motive.
III. Common Situations Giving Rise to Constructive Dismissal

Changes to an Employee’s Compensation and Benefits

Any significant reduction in an employee’s pay that is not accepted by an employee will amount to a
fundamental breach in contract.

Employee would have right to quit and claim damages.

Pay cut has to be enough for fundamental breach.

No longer abiding by the fundamental terms of contract.

More debate when cuts are smaller than 15% and from variable pay.

Variable pay expected to fluctuate.

Changes to an Employee’s Job assignment

If employee elects to quit rather than accept new job.