There is a new and very interesting case out of the Ontario Superior Court of Justice, Chevalier v. Active Tire & Auto Centre Inc..
As you may recall, Evans v. Teamsters involved a case of an employer terminating an employee, then offering him a fixed term contract to work through the notice period he demanded. The Supreme Court concluded that his refusal to accept the job constituted a failure to mitigate, so his action failed. This has had a lot of impact on constructive dismissal cases (i.e. 'Yes, you were constructively dismissed, but you should have stayed in the job anyways'), where there would not be an atmosphere of "hostility, embarassment, or humiliation".
Chevalier is along similar lines. A manager had been in the job for 33 years, and, after Active Tire took over the workplace in 2007, it made several changes with which he was dissatisfied. He experienced what he felt was harassment, was transferred to a new location (from Niagara Falls to St. Catharines), was required to work for a period of time in Toronto, and was required to do what he felt was demeaning work.
He was 'laid off' in the face of business difficulties (there were two managers on site, and it was decided that the location could only support one), and he immediately commenced legal action (two weeks after being dismissed). Active Tire obtained legal advice, was advised that they were not entitled to lay him off (presumably there was no contractual right to do so), and they immediately apologized and offered him his job back. He declined.
The employer denied having harassed him, and ultimately the judge accepted this, finding that Mr. Chevalier's recollection of events was "magnified and distorted" by his bitterness toward the company. Active Tire's conduct was, according to the judge, directed toward making him "a more effective contributor as an employee".
The judge considered it relevant, but "not determinative" that Mr. Chevalier had already commenced legal action when recalled to work.
All things considered, the judge ruled, a "reasonable" person would have accepted the job and returned to work. Accordingly, Mr. Chevalier's action was dismissed.
The case law backs up the judge's analysis here, but I still question whether or not the result is in the right place here.
I'm not sure that the legal community in general fully appreciates how significant a step litigation is to the general public. Suing somebody is a big deal. Being sued is a big deal. Very few people regard litigation as being simply business, from which they can detach any personal feelings. Most people think of most commercial transactions as being in good faith, and few people will sign a contract if they expect to have to litigate it.
So I would argue that the fact that litigation has begun should be significant indeed. (However, it is surprising that the litigation began so quickly in this case. When I'm representing an employee and the employer has overstepped with something like a suspension or temporary layoff, I would normally start with a demand, putting them on notice of my client's position, and give them an opportunity to get their own legal advice on the point. Sometimes, depending on the needs of the client, I throw a really slow pitch at first to encourage a recall. Two weeks...well, it's really fast, and suggests to me that there may have been a "Gotcha!" aspect to the claim, trying to get the litigation moving before the employer could realize its mistake.)
There's also another dimension here. On the findings of the trial judge, the employer's conduct prior to the termination was mostly within its rights, including disciplinary actions. However, the layoff was not, and the fact that it followed other discipline - even justified discipline - may not be irrelevant to whether or not the layoff poisons the work environment. If I discipline you, and then lay you off, the causal relationship is implied. There may well be other legitimate business considerations at play, but at least the choice of who goes is probably being influenced by disciplinary history. It sends a message.
This is especially so for a manager, being one of two managers. It would undermine his authority with the staff, when the employer has clearly sent the message - to him and others - that they don't want him there anymore.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.