We represented the Plaintiff in an employment law action which invoked two main issues.
First, the parties disagreed regarding whether there was a breach of contract (constructive dismissal). The Plaintiff had typically worked 60 hours per week during her employment but there was no explicit contractual term entitling the Plaintiff to work a particular number of hours. The Defendant attempted to impose a new regime in which the Plaintiff’s position would be shared with another employee, and she would be guaranteed 40 hours of work per week. The Defendant argued that since there was no contractual term entitling the Plaintiff to a particular number of hours, the new arrangement could not be viewed as a breach of the employment contract, and thus was not a constructive dismissal. Madam Justice Russell accepted our argument that the employment contract was breached and the Plaintiff was constructively dismissed. Although there had been no guarantee regarding hours of work, the Plaintiff during his employment had typically worked a 60-hour week, and thus a reduction to a 40-hour week was a breach of the employment contract. A reduction in the Plaintiff’s duties also factored into Russell, J.’s analysis.
The second major issue in this case was whether the Plaintiff had a duty to mitigate his damages by accepting the new arrangement, and/or a subsequent offer of re-employment with the Defendant. The Defendant submitted that the Plaintiff unreasonably declined both offers, and was thus not entitled to an award of damages. Russell, J. found that the manner of the Plaintiff’s constructive dismissal was humiliating. Accordingly, no reasonable person would have accepted an offer of continued employment or re-employment with the Defendant, with the result that the Plaintiff was entitled to recover damages.
The Plaintiff had worked for the Defendant for 2.5 years. She received a five-month notice period.