After reading this review of a recent decision from the Manitoba Court of Appeal on constructive dismissal you may want to read the full-text of the decision here.
The plaintiff worked for a car dealership for 19 years as a general manager and vice-president. His eyesight began to deteriorate in 2005 and he was diagnosed with diabetes. By June 2007, he was blind in one eye. On May 5, 2009, the plaintiff was called to a meeting by the dealership’s owner. The meeting was short and concerned the impact of the plaintiff’s deteriorating eyesight on his work. After the meeting, the plaintiff left the dealership and never returned. Two days later the dealership advised staff that the plaintiff was taking a leave of absence for health issues. Less than a month later, the dealership filled the plaintiff’s position.
The plaintiff claimed that he was told to either go on LTD or be terminated. The defendant said the plaintiff quit his job.
The Trial Judge found there were credibility issues, decided against the plaintiff on this point and did not consider constructive dismissal.
The Court of Appeal allowed the appeal on the question of whether “the judge erred when he failed to consider whether the plaintiff was constructively dismissed, ” and stated:
 Employees take leave of absences for many reasons, often at their request and usually in consultation with their employer. However, “a forced leave of absence may constitute a constructive dismissal, particularly where it is an unpaid leave of indefinite duration, with no guarantee of eventual re-employment” (Echlin & Fantini at p. 392).
The Court of Appeal found that there had been a constructive dismissal saying:
 At the meeting there was no discussion; only Jim Gauthier spoke. He told the plaintiff that he could return when he was “better” and his job would be waiting for him. However, the plaintiff’s position was filled within a month. There was no invitation to the plaintiff to obtain a medical report or to return to discuss the difficulties he was having in order to develop a mutually satisfactory plan. Rather, the plaintiff was removed from his position indefinitely and lost his salary after two weeks. What occurred at the May 5th meeting can only be described as a “fait accompli,” decided unilaterally. The plaintiff was a long-standing senior employee. He was effectively told to go home and to apply for disability coverage. This was ,in my view, a forced leave of absence.
The court went on to conclude that the “forced leave of absence” resulted not in the employee quitting, but rather in the employee being constructively dismissed. The court found that this “forced leave of absence” caused a fundamental change in the employment relationship such that the Plaintiff was entitled to treat the contract as at an end. The employee was awarded damages for wrongful dismissal.
So what did the Employer do wrong in this case?
Why couldn’t they put an employee who, in their view, was clearly struggling with a health issue on leave? From the Employer’s perspective, they were helping an employee take the time to get well, all the while promising his job would be there when he was ready to return. What is wrong with that?
The Employer might have had the right intention, but went about it the wrong way. First, the Employer did not know whether the employee’s condition was affecting his performance; they just assumed that it was. The Employer had only a rudimentary knowledge of the plaintiff’s condition and prognosis. The Employer did not speak with him about it or seek medical documentation, did not know if he was struggling with his position, and made no effort to assist or accommodate. Instead, the Employer decided that the employee needed a medical leave.
The Employer should have spoken to the Employee about performance concerns, investigated whether those performance issues were related to a medical condition, and explored what measures could be taken to assist the employee with his job duties. The Employer was lucky that it was not also subject of a human rights claim given its failure to explore accommodation.
Tips for Employers
- Get information – As an employer, you are not entitled to a diagnosis, but you can ask for information from medical professionals as to whether the medical condition is affecting the employee’s ability to perform the job duties and, if so, what efforts you can take to accommodate the employee;
- Work Together – you cannot unilaterally decide what the best course of action is. Accommodation is a two-way street that requires the involvement of both the Employer and the employee, working co-operatively and collaboratively to meet the mutual needs of both parties;
- Keep it Private – the employee’s medical condition is not for the rest of the workforce to know. Many organizations segregate medical data about employees from the rest of the organization such that only limited people have access to and knowledge of that data. Take care to maintain the confidentiality of the employee’s condition.
Case cite: Irvine v. Gauthier (Jim) Chevrolet Oldsmobile Cadillac Ltd., 2013 MBCA 93 (CanLII)