View cases - Stewart McKelvey

Page: 7had no obligation under the Human Rights policy to conduct an investigation as there was noformal complaint filed.[27] The parties rely on the Supreme Court of Canada case of Farber v. Royal Trust Co.,[1997] 1 S.C.R. 846 at paragraph 26 which sets out the test for constructive dismissal as follows:“To reach the conclusion that an employee has been constructively dismissed, thecourt must therefore determine whether the unilateral changes imposed by theemployer substantially altered the essential terms of the employee’s contract ofemployment. For this purpose, the judge must ask whether, at the time the offerwas made, a reasonable person in the same situation as the employee wouldhave felt that the essential terms of the employment contract were beingsubstantially changed.” (emphasis added)2011 ONSC 777 (CanLII)The Bank agrees that the assessment of whether the changes to the terms of the employmentcontract amount to a fundamental breach is an objective one. This is consistent with theSupreme Court of Canada’s test of whether “a reasonable person in the same situation as theemployee would have felt that the essential terms of the employment contract were beingsubstantially changed”. It is necessary to examine whether the essential terms of Mr. Chandran’semployment contract were being substantially changed.[28] Mr. Chandran submits that the two jobs offered were at a lower grade which resulted inlower compensation and lower prestige. All of his supervisory duties were removed. Hetestified that it was his goal to reach the position of Vice-President and that every move he hadmade within the Bank was carefully considered in order to increase his chances of reaching hisgoal. He testified that his job as senior manager was an important position to hold in hisprogression through positions to reach this goal of becoming Vice President.[29] Mr. Chandran also testified that he lost all trust in the Bank. Although he has been avalued employee, receiving excellent performance appraisals for eighteen years, the disciplinaryletter of September 5, 2007 clearly indicated that his employer accepted the allegations of theemployees that he was guilty of the extremely serious conduct set out in the letter without anyquestion, even though he did not have a chance to defend himself. This conclusion by the Bankthat he was guilty of such serious behaviour would obviously have an extremely negative impacton him in the future and would affect his goal of becoming Vice-President at the Bank. Further,he testified as to the effect of the disciplinary letter was being put “on probation“. I have alreadyfound that I agree with Mr. Chandran’s characterization of the disciplinary letter.The Two Alternate Positions Offered(a) Reporting Relationship[30] With respect to the two alternate job offers, the Bank submits that as Manager ofBusiness Development/Special Projects, Mr. Chandran would report to the same Vice-President,Mr. Flowers. There could therefore be no loss of prestige in this reporting relationship.