Constructive Dismissal

ESA Claim Can Amount to Repudiation Of Employment Contract

In a recent decision, the BC SupremeCourt has ruled that by filing, and subsequently withdrawing, a constructivedismissal claim under the EmploymentStandards Act (ESA), an employee may repudiate his/her employment contract.

The plaintiff, a low-level manager, wenton stress leave from her employment and claimed she had been constructivelydismissed based on a poisoned work environment and upper management’s usurpingof her authority. The employer recognized the plaintiff’s medical leave, andcommunicated its desire that she remain in her position.

The plaintiff filed a constructivedismissal claim under the ESA, but withdrewthe claim at mediation. At this point the employer sent a letter to the plaintiffasserting that she had repudiated her employment contract. The plaintiff then broughther claim in BC Supreme Court.

The court held that the plaintiff failedto prove she had been constructively dismissed, and found that constructivedismissal claims under the ESA are to be treated as analogous to those made incourt. Consequently, the employer was entitled to consider that the plaintiffhad repudiated the employment contract by filing and subsequently withdrawingher ESA claim without a finding of constructive dismissal.

This decision serves as a useful reminderto employers not to lose sight of the implications that may arise when anemployee pursues and/or abandons a claim in one forum.

Danieliszv. Hercules Forwarding Inc., 2012 BCSC 1155