View cases - Stewart McKelvey

Page: 11large number of unsolicited complaints, it was therefore reasonable for both Ms. Kenney and Mr.Flowers to conclude that there were problems with Mr. Chandran’s management style and thathe should be moved to a non-supervisory position.[50] The Bank argues that the propriety of their decision to transfer the plaintiff is not negatedbecause Ms. Kenney did not conduct an investigation. There was no obligation for Ms. Kenneyto conduct an investigation.[51] The Bank further argues that the validity of the decision to transfer Mr. Chandran is notnullified by the failure to inform him of the specific complaints made by specific employees sothat he could offer a rebuttal. It is submitted that no court has recognized a legal duty to providean employee with a fair hearing in the course of the employment relationship. In fact, courtshave held that there is no legal duty to provide a fair hearing before terminating the employmentrelationship.2011 ONSC 777 (CanLII)[52] It is argued that if an employer has no duty to provide a fair hearing at the time theemployee is most vulnerable, at termination, there is no reason to impose such duty, when anemployer is transferring an employee. The Bank submits that the proposal to transfer Mr.Chandran was not an attempt to force him to quit. Both Mr. Flowers and Ms. Kenney testifiedthat they wanted Mr. Chandran to continue his employment. They testified that it was verydifficult to find employees with his skill set.[53] The Bank claims that it was therefore reasonable to propose the transfer in light of thestaff complaints. The proposals, it is argued, were handled sensitively and respectfully. Theyfound two alternative management positions that were closely equivalent to the status andresponsibilities of Mr. Chandran’s position of Senior Manager. The Bank was prepared tocommunicate the transfer in a manner the reflected positively on Mr. Chandran.[54] In summary, the Bank’s position is that the proposed transfer and the issuance of thedisciplinary letter did not breach a fundamental term of Mr. Chandran’s employment.[55] The Bank also relies on a provision in Mr. Chandran’s employment contract signed at thecommencement of his employment eighteen years ago which provides as follows:“I agree to hold any other subsequent position at such places designated byManagement and I understand that, during my probation period, my employmentmay cease without prior notice on my part or on the part of my employer, exceptin cases where prescribed by the Canada Labour Code. A prior notice of fourweeks on my part or that of my employer will thereafter be required beforeterminating my services, except in the case of indiscipline or violation of rules orof false declarations in the information given by me at the time of my hiring, atwhich time I shall be subject to dismissal without notice.” [emphasis added][56] The Bank cites jurisprudence which confirms the rights of an employer to transfer anemployee in circumstances where the employee has been previously transferred by the employer.