I Thought You Were Pushing Me Out – BC Court Finds Employee’s Erroneous Beliefs Not Constructive Dismissal
By: Michelle QuinnThis post was co-authored by Michelle Quinn and Catriona Chevalier, summer student.
The Facts
In Baraty v. Wellons Canada Corp., 2019 BCSC 33, Reza Baraty (“Mr. Baraty”) claimed he had been constructively dismissed from Wellons Canada Corp (“Wellons”) on June 2, 2017. Mr. Baraty worked for Wellons for approximately 7 years as the chief estimator. Cris Corilla (“Mr. Corilla”) was the only other person who worked in the estimation department with Mr. Baraty. The two men had a strained relationship that had required intervention by Wellons on a number of occasions.
Mr. Baraty claimed he had been constructively dismissed for two reasons. First, he believed incoming changes to the estimation department substantially changed his employment. From his perspective, the department no longer existed, and therefore his position as the head of that department no longer existed either.
Second, Mr. Baraty believed a series of events that had occurred at work indicated Wellons no longer intended to be bound by Mr. Baraty’s employment contract. Such events included his beliefs that Wellons had failed to put an end to Mr. Corilla’s bullying and harassment, and attempts to get him to retire prematurely.
The Issues
The primary issues before the Court were twofold:
- whether Mr. Baraty was constructively dismissed from his position as chief estimator with Wellons, either as a result of:
a) a change in or elimination of his role as chief estimator?
b) failing to protect him from being subject to an intolerable work environment? - if yes, what would be the appropriate notice period?
The Decision
The Court considered the legal principles underlying a claim for constructive dismissal and applied the two “branches” of constructive dismissal that were identified in the leading case of Potter v. New Brunswick Legal Aid Commission, 2015 SCC 10 to determine whether Mr. Baraty had been constructively dismissed.
The first branch occurs when a single act breaches an essential term of an employment contract. The test under this branch is whether there has been a breach of the employment contract and whether that breach substantially altered the employment contract.
Mr. Baraty’s position was that an email from his general manager explaining that the estimation department was not its own department, but was part of the sales department, established that Wellons had eliminated his department and his position.
After considering all of the evidence, the Court found that prior situations in the office had led Mr. Baraty to misunderstand the email in question. The Court found that the general manager’s email actually confirmed the continued existence of Mr. Baraty’s position as chief estimator.
Consequently, Mr. Baraty failed to prove that he had been constructively dismissed under the first branch.
The second branch is when a series of acts, taken together, show that the employer no longer intends to be bound by the employment contract. The test under this second branch is whether there has been conduct that would lead a reasonable person to conclude, in light of all of the circumstances, that the employer no longer intends to be bound by the employment contract.
Mr. Baraty’s position was that Mr. Corilla was insubordinate and rude and that Wellons did not take sufficient or appropriate action to stop Mr. Corilla’s behaviour because, he believed, the company wanted Mr. Baraty to retire so it could promote Mr. Corilla. The Court disagreed with Mr. Baraty’s characterization of the situation, and found that Wellons handled Mr. Baraty’s complaints about Mr. Corilla quickly and appropriately by conducting independent investigations, speaking with other employees and giving warnings to Mr. Corilla.
Mr. Justice Wilson commented that:
Additionally, the Court accepted Wellons’ inquiries regarding Mr. Baraty’s retirement plans had to do with business planning and not with any attempt to push him out. As a result, Mr. Baraty also failed to prove he had been constructively dismissed under the second branch.
His claim for constructive dismissal was dismissed and as such, it was not necessary for the Court to address the appropriate notice period.
Constructive dismissal law is complex and whether an employee has in fact been constructively dismissed will depend on the individual and unique facts.
If you have any questions regarding constructive dismissal, please contact either myself at mquinn@rbs.ca, or any other member of our Employment & Human Rights Group.
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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.
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In addition to the amendments to the Employment Standards Act that were discussed in our last blog entry, the B.C. government has introduced a new Employer Health Tax (the “EHT”) in January of this year. The government hopes that the EHT will help their efforts to eliminate the Medical Service Plan premiums paid by all individuals. With this new tax, the government hopes to completely eliminate MSP premiums by January 2020.
