September 17, 2013

Constructive Dismissal – Sanderson v. Muskeg Lake Cree Nation

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Sanderson v. Muskeg Lake Cree Nation, [2013] C.L.A.D. No. 202 (August 5, 2013)

Upon facing a 1.6 million dollar deficit, the Respondent performed a staffing review and decided to delete the complainant’s position in human resources. The Complainant had a degree in social work and a social worker position was available with an intended future HR component, so the position was offered to the complainant with no change in pay.

When told of the change of position, the Complainant commenced looking for alternate employment immediately. She stated that she was scared to work at her new position because she “knew what the Director was like” in the Health and Social Department. She started at her position, but resigned after two weeks claiming that she was subjected to a duty and status change and felt unwanted and uncomfortable. At hearing, the Complainant admitted that she did not give the position “any time” to evaluate and experience not only the duties, but the environment for performance of same. She started alternate employment three days after her resignation.

The test for constructive dismissal is an objective one: whether the terms and conditions of work changed so fundamentally as to repudiate the employment contract. The complainant has the burden of proof in such cases and the Canada Labour Arbitration panel found that the complainant did not meet the burden in this case. On the totality of the evidence, including that the Complainant accepted the position and that it was necessary for the Respondent to restructure its employment positions, the panel found that the essential terms of the Complainant’s employment contract were not substantially altered.

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