Focus On

WRONGFUL DISMISSAL - Constructive dismissal - Change to location of work - Dismissal without cause

Wednesday, December 20, 2017 @ 8:36 AM  


Lexis Advance® Quicklaw®
Appeal by an employee from dismissal of his action against his employer alleging wrongful dismissal. In 1998, the employee commenced work as an insurance sales agent for the employer. In July 2007, the employee received working notice of fundamental changes to his employment contract taking effect by September 2009. The employee accepted working notice and indicated an intention to retire at the end of the notice period. In October 2008, the employer sought to impose immediate changes, requiring the employee to close his neighbourhood office and move to another office operated by the employer. The employee refused, insisting on continuation under existing agreements reached during the working notice period. The employer terminated the employee for cause based on his refusal. The trial judge accepted the employer's position that it had just cause for termination based upon reasonable notice of the changes to employment. The employee appealed.

HELD: Appeal allowed in part. The trial judge erred by not addressing the question of whether the change in location, including the change to the business model under the neighbourhood office agent agreement, could be made by the employer during the working notice period. The trial judge also erred by failing to consider whether that agreement precluded a unilateral change to the employee's business model and location. The proposed office relocation was a fundamental change to an agreed-upon business model and could not be unilaterally imposed during the working notice period. The employee was granted compensation for the balance of the notice period between November 2008 and September 2009.

Nufrio v. Allstate Insurance Co. of Canada, [2017] O.J. No. 6345, Ontario Court of Appeal, P.S. Rouleau, M.L. Benotto and L.B. Roberts JJ.A., December 5, 2017. Digest No. TLD-December182017005