View cases - Stewart McKelvey

Page: 13disciplinary letter against Mr. Chandran along with the changes in duties and terms ofemployment cannot, in my view, be placed in the same category.[62] I agree with Mr. Chandran’s submissions regarding the serious impact on his futureemployment at the Bank caused by the loss of prestige and potential for compensation, as well asthe loss of the opportunity for advancement to a senior position at the Bank.[63] I find that any reasonable person in Mr. Chandran’s position being presented with thedisciplinary letter concluding that he was guilty of serious misconduct, being removed from hisposition, and offered positions of lesser grades, where the supervisory duties were removed,would conclude that the essential terms and conditions of the employment contract were beingsubstantially changed. Mr. Chandran was an eighteen year employee with extremely positiveperformance appraisals set on a course of continuous promotions who suddenly became anemployee who was guilty of very serious conduct in the violation of two very important policiesof the Bank. A reasonable person would, in my view, believe that his employment opportunitiesat the Bank and his employment future at the Bank would be significantly limited, and that histerms and conditions of employment were substantially changed.2011 ONSC 777 (CanLII)[64] I do not agree with the Bank’s arguments based on the jurisprudence that is relied on.These cases do not have the effect of overruling the Supreme Court of Canada in the Farber casethat sets out the criteria to determine if there is a constructive dismissal. The law with respect toan employer’s right to transfer is subject to the law regarding constructive dismissal. I havefound that the actions of the Bank did constitute a constructive dismissal. I do not agree that theBank’s power to transfer is unlimited as suggested by the Bank. The Bank is not immune from afinding that there has been a constructive dismissal of Mr. Chandran’s employment. I agree withMr. Chandran that the imposition of the discipline as a new term of employment for the twoalternate positions in conjunction with the proposed changes in his duties amounts to aconstructive dismissal.[65] The issue in this case, unlike in the cases referred to by the Bank, is whether theimposition of the discipline in combination with the Bank’s unilateral removal of Mr. Chandranfrom his position is a constructive dismissal.[66] Mr. Chandran testified that he has lost all trust in the Bank to deal with him in a fair andprofessional manner. I have already found that a reasonable person in similar circumstanceswould also lose trust and faith in his employer. I find that the actions of the Bank in reachingsuch serious findings of misconduct, the imposition of discipline and the mandatory transfer toalternate positions (with lesser terms and conditions of employment) goes to the root of theemployment contract and is a fundamental breach of the employment agreement, whichconstitutes a constructive dismissal.Mitigation