View cases - Stewart McKelvey

Page: 5the employees 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][16] Mr. Chandran submits that the effect of this paragraph was to place him on probation asthe letter stated that any behaviour “of this type will result in his termination of employment forcause”.[17] The issue in this case is whether the Bank’s unilateral transfer of Mr. Chandran to one ofthe positions offered, together with the issuance of the disciplinary letter of September 5, 2007,constituted a constructive dismissal of his employment. If so, the issue of Mr. Chandran’smitigation of damages must also be considered.2011 ONSC 777 (CanLII)Was Mr. Chandran Constructively Dismissed from Employment?[18] Mr. Chandran submits that the terms and conditions of either of the two positions offeredwere subject to the disciplinary warnings set out in the September 5, 2007 correspondence. Hesubmits that the effect of the letter was to put him on probation.[19] The Bank disputes this interpretation of the disciplinary letter. Mr. Flowers, the signatoryof the letter, testified that he does not know who drafted the disciplinary letter. He said that theintent of the last paragraph was to give Mr. Chandran a warning that he should not engage in anyof “that behaviour” if he went back to his office at that time, and that it did not refer to conductduring any future employment. He testified that the references to continued “behaviour of thistype” were meant to refer to “actions that may be seen or perceived to be retribution by theemployees who raised their concerns to us”.[20] Ms. Kenney however testified that the reference in the letter to “behaviour of this type”was to the “inappropriate behaviour” which is referred to at the beginning of the letter, namely:making condescending remarks, criticizing and embarrassing employees in front of others, usinga raised voice/shouting, having volatile reactions/behaviour and bullying.[21] The Bank submits that Ms. Kenney did not draft the letter and was not an employeerelations expert and as such her evidence with respect to the meaning of the disciplinary lettershould be disregarded. It was Ms. Bernardino who “probably” drafted the disciplinary letterwhich was signed by Mr. Flowers. There is, however, no evidence as to who the author of theletter was.[22] Ms. Kenney testified that the Bank had a policy of following progressive discipline.Initially, the Bank would start with a verbal warning which was to be followed by a writtenwarning and then a final written warning before termination. She did state that the type ofprogressive discipline imposed would depend on the severity of the offensive behaviour by theemployee. It is submitted by Mr. Chandran that (as confirmed by Ms. Kenney in her evidence)the reference to engaging in any “further behaviour of this type” was to the behaviour the Bank