Parlee’s own Robert P. James and Daniel S. Weber were recently successful before the Alberta Court of Queen’s Bench in the constructive dismissal case of Novakowski v Canadian Linen & Uniform Service Co, 2015 ABQB 53.

The case aids practitioners and clients alike in succinctly reviewing the law of constructive dismissal in Alberta. The case provides as follows:

  • The onus is on the employee to establish constructive dismissal on a balance of probabilities;
  • The employee must prove dismissal as opposed to resignation;
  • Changes to an employment contract that are alleged to amount to constructive dismissal must be (i) substantial or fundamental; and (ii) have been made unilaterally by the employer;
  • When an employer changes fundamental terms of an employment contract, the employee has two options: (i) agree to the changes and the employment contract continues as modified; or (ii) treat the employment contract as having been substantially changed (i.e. breached) by the employer and at an end, and communicate that decision to the employer in a reasonable time; and
  • The test for constructive dismissal is objective, with a subjective component. The question that the Court must answer is “whether a reasonable person in the same situation as the [employee] would have felt that the essential terms of the employment contract were being substantially changed.” If the answer to this question is “yes”, then “the employer will have committed a fundamental breach of the employment contract and the employee is entitled to consider him or herself constructively dismissed.”