View cases - Stewart McKelvey

Page: 4We have concluded, therefore, that we have no alternative but to relieve youas the supervisory manager of the Vaughan office. As a result, we attach, asAppendix A to this letter, two reassignment options and the terms and conditionsthat will apply to each. …As mentioned in our discussion, we wish to reiterate that disrespectful treatmentof employees and colleagues must cease immediately and you are not to takepart in any actions that may be seen or perceived to be retribution by theemployees who raised their concerns to us. You must know that furtherbehaviour of this type will result in termination of employment for cause.Please note that no other warnings will be issued on this matter.” [emphasisadded][11] The two attachments to the correspondence, which will be reviewed below, containedbrief descriptions of two alternate positions which were offered to Mr. Chandran.2011 ONSC 777 (CanLII)[12] Counsel for the Bank has advised the Court that this letter of September 5, 2007 wasdisciplinary.[13] The Bank, however, withdrew its alternate pleading that it had just cause to terminate Mr.Chandran’s employment on the grounds of workplace harassment and/or breach of policy, andpoor performance.[14] The Bank does not plead that it had cause to discipline and demote and/or remove Mr.Chandran’s supervisory duties but denies that it constructively dismissed him. The Bank submitsthat he was transferred from his position to one of two alternate positions which were notaccompanied by any loss of prestige or pay. These positions were senior and suited to Mr.Chandran’s expertise and experience. As Mr. Chandran did not accept the transfer, which theBank argues it had the right to make, he voluntarily resigned from employment. The Banktherefore submits that it had no further obligation to him. Alternatively, the Bank argues that ifthere was a constructive dismissal, Mr. Chandran failed to fulfill his obligation to mitigate hisdamages.[15] Mr. Chandran’s submission is that the provisions of the September 5, 2007 disciplinaryletter make it clear that the Bank had reached the conclusion that he was guilty of the identifiedserious breaches of the Bank’s code of professional conduct and the Bank’s harassment anddiscrimination policy. These conclusions had been reached notwithstanding the fact that therewas no investigation by the Bank, and that he was not given an opportunity to defend himselfagainst the allegations. Mr. Chandran refers to the final paragraph of the letter which provides asfollows:“As mentioned in our discussion, we wish to reiterate that disrespectfultreatment of employees and colleagues must cease immediately and you arenot to take part in any actions that may be seen or perceived to be retribution by